Pass / 



UNITED STATES CIRCUIT COURT, 

DISTRICT OF NEW HAMPSHIRE 



PERCY SUMMER CLUB 

vs. 

JOSEPH C. ASTLE and JACOB ASTLE 



ARGUMENT FOR DEFENDANTS ON FINAL HEARING 
AT PORTSMOUTH, N. H , 
JUNE 29 AND JULY 24, 1905. 

BY^' 

ALBERT S. BATCHELLOK, 
Littleton, N. H. 

HENRY F. HOLLIS, 
CoNcokD, N . H . 

WILL P. BUCKLEY, 
Lancaster, N. H. 



CONCORD, N. H. : 
RUMFORD PRINTING CO. 

1905. 




New Hampshire. 



UNITED STATES CIRCUIT COURT, 

DISTRICT OF NEW HAMPSHIRE. 



THE PERCY SUMMER CLUB 3 J-C 

1 

vs. 1 

JOSEPH C. ASTLE and JACOB ASTLE 



NO. 315 EQUITY. 



THE COMMON LAW IN NEW HAMPSHIRE 

AN EXAMINATION OF THE EVIDENCE IN SUPPORT OF 
THE PROPOSITION THAT A NATURAL FRESH-WATER 
POND, CONTAINING TEN ACRES, IS A LARGE OR 
GREAT POND AND IS PUBLIC; AND THAT 
THIS IS JUDICIALLY RECOGNIZED AND 
AFFIRMED AS THE COMMON LAW BOTH 
IN THE PROVINCE AND STATE 



ARGUMENT FOR DEFENDANTS BEFORE THE 
HON. WILLIAM L. PUTNAM, CIRCUIT JUDGE, 
AT THE FINAL HEARING AT PORTSMOUTH, 
N. H., JUNE 29 AND JULY 24, 1905. . . . . 

BY 

ALBERT S. BATCHELLOR. 
HENRY F. HOLLIS. 
WILL P. BUCKLEY. 



• 



CONCORD, N. H. : 
RUMFORD PRINTING CO. 



Gift 
Camesie mat. 




Drawn in accordance with the terms of the Original Charters. Scale, 2 miles=l inch. 

Ray T. Gile, C. B. 

A composite from three authentic maps, viz.: Holland's, Eames' and the one in 

the Percy charter. 



s 




I 



ARGUMENT. 



The expansion of the common law of England in the jurisprudence 
of the American colonies in the seventeenth and eighteenth centuries 
is a subject that requires, both from the historical and practical point 
of view, a constantly recurring judicial cognizance of the American 
courts. The abundance of the modern publication of the colonial rec- 
ords of England and of the American plantations, disclosing evi- 
dence that was not accessible until a comparatively recent period, 
except in obscure manuscript archives in various custody on both con- 
tinents, affords the opportunity for a vastly broader and better view 
of the legal and governmental relations of the mother country and 
her American dependencies before the American Revolution than was 
formerly possible. 

James C. Carter, in his addresses before the Bar Association of Vir- 
ginia and the American Bar Association, John F. Dillon, in his Yale 
lectures, and Sir Frederick Pollock, in his recent lectures and essays 
grouped in his volume on ' ' The Expansion of the Common Law, ' ' have 
placed themselves within this new perspective, recognizing the fac^t 
that the extension and dissemination of the principles of common law 
cannot be discovered, identified and measured by such hard and fast 
rules as those of Calvin's case and the declaration of the judges re- 
ported in 2 Pere Williams, 75. 

Professor Pollock remarks, on page 9 of the volume mentioned, as 
follows : 

''We have long given up the attempt to maintain that the common 
law is the perfection of reason. Existing human institutions can only 
do their best with the conditions they work in. If they can do that 
w T ithin the reasonable margin to be allowed for mistakes and accidents, 
they are justified in their generation. Even their ideal is relative. 
What is best for one race or one society, at a given stage of civilization, 
is not necessarily best for other races and societies at other stages. We 
cannot say that one set of institutions is in itself better or more rea- 



4 



sonable than another, except with reference express or implied to con- 
ditions that are assumed either to be universal in human societies, or 
to be not materially different in the particular cases compared. It 
may perhaps be safe to assume, in a general way, that what is reason- 
able for Massachusetts is reasonable for Vermont. It would not be at 
all safe to assume that everything reasonable for Massachusetts is rea- 
sonable for British India, nor, indeed, that within British India what 
will serve for Lower Bengal will equally well serve for the northwest 
frontier. The first right of every system, therefore, is to be judged in its 
own field, by its own methods, and on its own work. It cannot be 
seen at its best, or even fairly, if its leading conceptions are forced 
into conformity with an alien mould. A sure mark of the mere handi- 
craftsman is to wonder how foreigners can get on with tools in any 
way different from his own. Thus, in England, one shall meet people 
who cannot understand that the Scots do without any formal difference 
between law and equity ; as, on the other hand, I have known learned 
Scots fail to perceive that the common law doctrine of consideration, 
being unknown to the law of Scotland, is yet founded on a hard bottom 
of economic fact which every legal system has to strike somewhere. 
We now realize that the laws of every nation are determined by their 
own historical conditions not only as to details but as to structure; 
and if we fail to attend to this we cannot duly appreciate the system 
as we find it at a given time. ' ' 

George T. Bispham, in an article entitled "Law of America, 
1776-1876," North American Review, Vol. 122, 1876, p. 156, says: 

"On the other hand, a still more striking and interesting topic is 
the consideration of the departures of American law from English 
principles ; and the cases here presented would be those in which, from 
circumstances which it ought to be the task of the student to discover 
and explain, American jurisprudence has found the rules of English 
iaw unsuited to the conditions of American life, Ijas therefore repu- 
diated or modified them, and has established a set of legal rules which 
may be termed essentially and properly American. This latter view of 
the general subject is one which would, with the greatest propriety, be 
considered the most interesting and instructive at this period of the 
national existence, when we are occupied in looking for, pointing out, 
and discussing those features in the different relations of life which 
are often grouped together under the somewhat vague term of Ameri- 
can institutions. Both methods, however, of dealing with the general 
subject will have to be, to a certain extent, adopted ; and in endeavor- 



5 



ing to find out what are the peculiarities of American law which have 
grown up or sprung up since our separation from the mother country, 
and which tend to give our jurisprudence a national individuality, we 
shall be compelled to touch upon some points in which the American 
has advanced beyond, or fallen behind, English law in paths which 
are common to both. 

" It is a trite remark, and one which has been made at many different 
times and with varying phraseology, that all law is the adaptation 
of principles of action to the physical and political conditions of a 
country, and to its moral, social, and intellectual growth. All national 
institutions must bear the impress of the outward features of nature 
by which the inhabitants are surrounded, and their modes of life, to 
a great extent, determined, and must also reflect the inward life of a 
nation and the external associations and internal consciousness by 
which that inward life has been moulded. 

"If we were to imagine a man, placed, in a savage state, in a new 
country, and were at liberty to suppose that his individual existence 
would be sufficiently prolonged to enable him to reach, in his own per- 
son, a condition of civilization and enlightenment, it would seem to be 
plain that the causes which control this development and determine 
its character must be sought for, in the first place, in the external phy- 
sical phenomena by which he was surrounded." 

See, also, Doe, C. J., in Thompson v. Androscoggin Co., 54 N. H. 548 ; 
Concord Mfg. Co. v. Robertson et at., 66 N. H. 1-30. 

' ' The Sources of New Hampshire Law, ' ' by William Smith, 1, Pro- 
ceedings of the New Hampshire Bar Association, p. 682. 

Judge Joel Parker (lecture at Lowell Institute, 1869, "The First 
Charter and the Early Religious Legislation of Massachusetts, " His- 
torical Society's publication, p. 385; Id., pamphlet edition, 31), also 
comments on the latitude for legislation which the local conditions in 
the new country necessarily afforded, and the not altogether obsolete 
question as to whether the laws of the mother country accompanied 
the exercise of her sovereignty in her American possessions in the 
early colonial period without special parliamentary legislation to that 
end. He says: 

£ ' But there was a restriction upon their legislation, religious as well 
as civil. They were to make no laws contrary to the laws of the realm ; 



6 



and the question arises, What was the character and what was the 
extent of this restraint ? 

"We may safely conclude that the meaning of the provision is not 
that they are to make no laws different from the common law of 
England, for much of that law was entirely inapplicable to their con- 
dition, so that they were under the necessity of making different laws. 
Laws different from or contrary to the laws of feudal tenure could not 
come within the prohibition. The same may be said of laws relating 
to the peerage, and divers other matters of more common concern. 

' ' So we may be assured that it was not a prohibition to make laws 
different from the statutes of England, for it was known that it was 
to escape from some of those laws that they emigrated. If they could 
make no law which provided for a different form of worship than that 
which was established in England, — if they must establish that with 
all its concomitants, they would have hardly crossed the Atlantic for 
the privilege of voluntarily subjugating themselves by their own acts, 
to the pains and penalties, and violation of conscience, to which the 
acts of others would have subjected them if they had remained. More- 
over, they had no bishops, — could not consecrate any,— and no one 
proposed to do that for them when the charter was granted. Laud 
would doubtless have been pleased to do them that favor three or four 
years afterwards ; but their right of legislation, or the restraints upon 
it, or the removal of restraints, did not depend upon that. . 

"The true construction of the clause is that they shall make no 
la ays contrary to, — antagonistic to,— in contravention of, the laws of 
the realm which extended or should extend over them, as inhabitants 
of the colony, and which were to be their paramount law. 

"We are thus brought to the question whether any and what laws 
of the realm were in force in the colony at the time of the charter 
and emigration. Happily we can settle this question by authority. It- 
is agreed that the law of the conqueror does not extend over the con- 
quered country until the conqueror pleases to put it in force there. 
And although we now hold that the title of the crown to the greater 
portion of this country was by right of discovery, it was held by the 
courts of England, long subsequent to the reign of Charles I, to be a 
title by conquest. Chief Justice Holt, in the Court of King's Bench, 
in the 4th of Anne, said : ' The laws of England do not extend to Vir- 
ginia, being a conquered country, their law is what the King pleases. '* 
And Blackstone, lecturing as late as 1756 says, ' Our American planta- 
tions are principally of this latter sort [conquered or ceded countries] , 
being obtained in the last century, either by right of conquest, and 



*Salkeld's Reports, Vol. I, [II] p. 666. 



7 



driving out the natives (with what natural justice I shall not at pres- 
ent inquire), or by treaties. And, therefore, the common law of 
England, as such, has no allowance or authority there. ' He adds that 
they are 'not bound by any acts of parliament, unless particularly 
named.' " * Lowell Inst, lecture, pamphlet ed., p. 31. 

The rule in Calvin's case was evidently intended to treat all the ex- 
tensions of national sovereignty over newly-acquired territory as sus- 
ceptible of precise division into two classes (first), where the lands 
are claimed by right of occupancy only by finding them desert or 
uninhabited and uncultivated, and peopling from the mother coun- 
try; or (second), where, when already cultivated, they have been 
either gained by conquest, or ceded to us by treaties. 

It is within the knowledge of every student of American history 
that the American colonies, except the York group, are not assignable 
in fact or by any fair and reasonable legal determination, to either of 
the classes specified in the rule of Calvin's case. It is true that the 
exception stated by Lord Coke against what he termed as ''heathen" 
countries was condemned with singular vigor by Lord Mansfield in 
Hall v. Campbell, in 1774. It is unquestionable that the Dutch and 
other alien settlements and possessions extended from Cape Cod to 
Cape Henlopen and these were all acquired by England by conquest 
and cession. Separately considered, they would belong in the first 
class, and yet while Lord Mansfield unequivocaally states in Hall v. 
Campbell that this particular territory (New York) was acquired by 
conquest, Judge Taney, presumably on* the authority of Jolvnson v. 
M'Intosh and Marshall's "American Colonies," as positively asserts 
in Martin v. Waddell, that it was not so acquired by the mother coun- 
try. Chief Justice Marshall and Chief Justice Taney both seem to 
have settled the facts of history in this case so as to obliterate the 
Dutch, Swedish and Finnish settlements entirely as a factor in Amer- 
ican colonization. None of the territory of the Atlantic coast colonies, 
in the strict sense of the term, was uninhabited. No considerable part 
of it was ever acquired and occupied by the colonists except by war 
and conquest continually directed against the native inhabitants or by 
treaties with them. 

*Blackstone's Com., Vol. I, p. 108. 



8 



The New England colonies and the southern group were beyond 
question, by force of obvious facts, excluded from both of the classes 
which the rule in Calvin's case distinctly specified, while the middle 
group, if assignable to either class, would belong in the first, that is, 
that of territory acquired by conquest or cession. The application of 
the second part of these rules, all the English authorities admit, must 
be made with very many and very great exceptions and restrictions. 
The English elementary writers and the English courts of the colonial 
period repeatedly declare that colonists occupying and settling regions 
assignable to the second class, carry with them the English laws in 
being "which are the birthright of every subject," and that such laws 
become "immediately there in force." (The same fundamental rights 
accompany them into conquered territory.) This leaves a great mass 
of rules (in no wise to be described as the "birthright of every sub- 
ject"), which go to make up what we recognize in ordinary legal par- 
lance as the municipal law of a particular country, England for illus- 
tration, outside the operation of any arbitrary rule imposing all the 
laws, whether merely local and municipal, or those which are recog- 
nized everywhere as fundamental or constitutional rights, upon colo- 
nists settled in acquired territory beyond the seas. This special phase 
of the subject will be considered in later connections. 

It is quite possible that a misapprehension of principles and con- 
fusion and error in their application may be avoided by noting and 
adhering to two necessary and obvious divisions of the principles and 
rules which were supposed to have been embodied in the common law 
of England. 

1. That which is everywhere recognized as the substance of those 
fundamentals described by Jefferson as "inalienable rights" (those 
which are mentioned by Blackstone on the authority of the case in 2 P. 
Wins. 75 as "the birthright of every subject"), with which all men 
are endowed by their Creator and among which are life, liberty and the 
pursuit of happiness, logically and upon authority constitute a dis- 
tinct and separate province of the common law, clearly distinguishable 
from those enactments, rules and customs which govern court proce- 

Note.— In the employment of the term " American Colonies " in these pages, it will be un- 
derstood that only the English colonies situated between Florida and the northern bound- 
ary of Maine are intended. 



9 



dure, the exercise of the suffrage, administration of municipalities, 
education of youth, tenure of office, tenure of estates, occupation, use 
and conveyance of real property, and all else that is manifestly assign- 
able to the province of the ordinary municipal law. 

Sir "William Blackstone, in specifying what part of the laws of the 
mother country do not pass with and accompany colonists into terri- 
tory acquired by discovery beyond the seas to their new settlements,. 
i. c. to regions to which Lord Coke's second rule is applicable, excludes 
what he describes as "the artificial refinements and distinctions inci- 
dent to the property of a great and commercial people, the laws of 
police and revenue, (such especially as are enforced by penalties,) the 
mode of maintenance for the established clergy, the jurisdiction of 
spiritual courts, and a multitude of other provisions, * * * neither 
necessary nor convenient for them, and therefore * * # not in 
force." Blackstone, introduction to the Commentaries, star paging 
106. 107. 

That which Lord Hale terms the "rights and liberties of the sub- 
ject." if intended to refer to the subjects' inalienable rights and the 
assertion of the king's royal prerogatives, would take place, of course, 
in the class above designated, as the first part in the division here 
tentatively suggested. 

2. To the other province might be assigned what the same eminent 
justice mentions as : 

(1) The common rule for administering justice within the kingdom. 

(2) The law by which the determinations in the King's ordinary 
courts are guided. 

(3) The law that directs the course of descents of lands, and the 
nature, extent and qualification of estates. 

(4) The manner and ceremonies of conveying from one to another. 

(5) The forms, solemnities and obligations of contracts. 

(6) The rules and directions for the exposition of deeds and acts 
of parliament. 

(7) The process, proceedings, judgments and executions of our 
courts of justice. 

(8) The limits and bounds of courts and jurisdictions. 

(9) The several kinds of temporal offences and punishments and 



10 



their application. Jacobs Law Diet., 1782, tit. Common Law. Lord 
Hale also includes the canon law as a part of the common law. Reeve 's 
Hist. Common Law, Finlasson's ed. Vol. 3, p. 1. 

The division of the time, in which an English-speaking people have 
occupied the territory of the present Atlantic states north of Florida 
and south of New Brunswick, by the political, cleavage of 1775, per- 
mits the consideration of the extension of the common law in the first 
period in accordance with the contemporary authorities in England 
and the colonies. 

The severance of the colonies from the domination of England in 
1775 marks the termination of the period of authoritative and con- 
clusive exposition of the case law for those dependencies by appeals 
from their courts to the privy council. 

There is no other recourse for the ultimate determination of what 
actually was the law of that period but the records of what was done 
and determined in England and in her colonies. Nothing on this 
side of the date of separation can alter the status of the legal relations 
of the colonies with the mother country as they had become estab- 
lished and existed prior to the end of the colonial period. When that 
epoch was concluded and the colonies were transformed into an inde- 
pendent nation, it was too late for American courts, subsequently cre- 
ated, to assign and impose, by judicial opinion and judgment, specific 
laws or general systems of laws to the several colonies which laws and 
systems the king, parliament and the English courts, on the one part, 
and the people, the local administrators and the courts of the colonies, 
on the other part, never, during the continuance of the colonial period, 
regarded as valid or operative on this side of the Atlantic. 

''What shall be admitted and what rejected," says Blackstone in 
the pages above cited, "at what times, and under what restrictions, 
must, in case of dispute, be decided in the first instance by their own 
(that is the Colonies') provincial judicature, subject to the revision 
and control of the king in council: The whole of their constitution 
being also liable to be new modelled and reformed by the general 
superintending power of the legislature in the mother country. ' ' 

One proposition seems to be axiomatic. Nothing can now be ad- 
mitted to have been the law of the colonies that was not actually valid 



11 



and legally operative according to the contemporary tests of the valid- 
ity of laws recognized and acted upon in the colonial period. The 
evidence of what that law was, as before remarked, must be sought in 
the records of that period. 

The components of the law emanating from the mother country 
were (1) that which had been imposed by the king under his law-mak- 
ing power within the prerogative, including colonial charters, com- 
missions and instructions for governors of provinces and grants of 
lands accompanied by powers of government in the proprietary plan- 
tations, (2) acts of parliament in terms made applicable to the colo- 
nies, and (3) such parts of the common law, including the unrepealed 
statutes of the realm antedating March 24, 1606, and the pre-existing 
usages and customs of the kingdom having the force of lav/ as were 
adopted by positive act or notorious conduct by the colonies and (4) 
the fundamental rights and liberties of the subjects referred to as 
those that are "the birthright of the subject" and as those natural or 
constitutional rights of Englishmen wTiich are clearly distinguishable 
from that mass of repealable and amendable provisions of the statute 
and common law commonly included in the generic term the "munici- 
pal law. ' ' 

The municipal law of England was not included and transimposed 
either in legal theory or in actual practice, but the local laws enacted 
under the province commissions and colonial charters supplemented by 
local usages and customs acquiring the force of law were substituted 
in America for the strictly municipal law of the mother country. 

King James the First, in the Virginia charter of 1606, recognized 
the natural rights of the subject in the following text: 

"Also we do for Us, our Heirs, and Successors, DECLARE, by these 
Presents, that all and every the Persons being our Subjects, which 
shall dwell and inhabit within every or any of the said several Colonies 
and Plantations, and every of their children, which shall happen to 
be born within any of the Limits and Precincts of the said several Colo- 
nies and Plantations, shall HAVE and enjoy all Liberties, Franchises, 
and Immunities, within any of our other Dominions, to all intents and 
Purposes, as if they had been abiding and born, within this our Realm 
of England, or any other of our said Dominions." Poore's Charters 
and Constitutions, Vol. 2, p. 1891. 



12 



This is repeated in the charter or patent of the Council of Plymouth 
for the planting of that part of America between the degrees of 34 
degrees and 45 degrees of latitude. 29 N. H. State Papers, 17. 

It also reappears in the Massachusetts charter of Charles the First, 
1629. Poore's Charters and Constitutions, Vol. 1, p. 940, and in the 
charter of Massachusetts granted by William and Mary, 1691, Poore 's 
Charters and Constitutions, Vol. 1, p. 950. 

The Masonian charter of April 22, 1635, which probably never be- 
came operative, either by reason of its not being fully executed on the 
part of the king, or, if executed, never put in operation by John Mason 
or his successors, contains similar provisions. 29 N. H. State Papers, 
77. 

This will be regarded as evidence as to an admission on the part op 
King James that the subject of the king of England, wherever he 
might dwell, had certain natural and constitutional rights. It cannot 
be claimed at this day that anything that the king could declare in this 
form would add to or subtract from those fundamental rights. Much 
less can it be claimed that the language in which they appear could be 
construed as a transfer of the ordinary municipal law of the king- 
dom of England by crown legislation to the American colonies. 

The distinction which is now referred to and which is apparently 
indispensable in the assignment of fundamental rights to one class 
and the provisions of ordinary municipal law to another class, is the 
subject of the reasoning of the court in American Insurance Co. v. 
Canter, 1 Peters 542; Halleck International Law, Chap. 34, 14. 

These authorities mention laws affecting the possession, use and 
transfer of property, and designed to secure good order and peace in 
the community and promote its health and prosperity, as among those 
that are of a strictly municipal character; while those which exempt 
the subject from cruel and unusual punishments, from the obligation 
to support an established religion, prohibition of an unreasonable 
abridgment of the freedom of the press, as under the American polity 
assigned to the class of inalienable rights which accompany the citizen 
into all the national dependencies. 

The propositions which immediately follow will be considered on 
the assumption previously made, that the extension of the laws of 



13 



England in the colonies is to be determined by an examination of the 
conduct of the crown authorities, the acts of parliament, the decisions 
of the English courts and the provisions of the English law as related 
to and affecting the establishment of government and the development 
of systems of laws in the several colonies. 

The issue of law is whether the entire body of the common law of 
England as it existed prior to the 24th of March, 1606, with the ante- 
dating unrepealed statutes, was, by reason of the immigration to 
America in that year, transferred in its entirety to the American colo- 
nies then and afterwards to be established. The questions naturally 
resulting are whether the contemporary authorities having to do with 
the making, interpretation and administration of laws, ever under- 
stood that anything in the nature of common law (except what have 
been mentioned above as the natural rights of the subject) accom- 
panied the migration as in legal contemplation an essential factor in 
it and inseparable from it, and whether that law in its entirety (with 
the same exception), at the outset became operative eo instanti and 
pro propria vigor e, on the colonists in their new seat beyond the seas, 
without positive legislation by the crown or voluntary and potential 
acts of selection and adoption by the colonies. 

It has already been shown that the American colonies were not 
logically assignable to the class under the rule in Calvin's case desig- 
nated as those taking possession of an uninhabited country, without 
conquest. 

The Barbadoes and Bermuda, when they were permanently occu- 
pied by English settlements, were unquestionably uninhabited coun- 
tries in the strictest sense of the term. 

The domain to be occupied by the English colonies on the mainland, 
outside that already in the possession of the Dutch and Swedes and 
possibly other alien colonists, if not logically assignable to either of 
the classes created by the rule in Calvin 's case, would necessarily con- 
stitute a new and different class. 

As respects such another and different class of colonies not provided 
for by the rule of natural law or the law of nations, as declared in Cal- 
vin 7 s case, it might be within the prerogative of the king to provide 
governments, new model and reform them by specific crown decrees, 



14 



in the absence of acts of parliament in the premises and in the non- 
existence, in the first instance, of colonial assemblies empowered to 
make laws. 

As the king in his regal capacity was a part of the parliament, it 
may be said, with the authority of the case of Hall v. Campbell, that if 
the provisions of government and laws for colonies and dependencies 
of another country had been made by act of parliament there would 
be no occasion for the interposition of the crown in their behalf. 

I. 

THE CONDUCT OF THE KING WITH REFERENCE TO THE 
PROVISION OF GOVERNMENT AND LAWS FOR THE AMER- 
ICAN COLONIES. 

The American colonies were in fact managed and administered by 
the crown authorities in the same way that conquered territory is pro- 
vided with new government and new laws. 

James the First. In the time intervening between the first perma- 
nent colonization of Virginia in 1606 and the termination of his reign 
in 1625, the parliament had not assumed to provide for the govern- 
ment of the prospective American colonies. James the First, however, 
had worked out a plan and provided for a form of government to be 
erected over Virginia, and had designated the instrumentalities by 
which laws should be made for them. He suffered no change to be 
made in his policy, and the fact that he, by direct decree or through 
the medium of the council created by the patent of 1606, and by the 
instrumentalities provided by other charters and patents, assumed 
the responsibilities of legislation for these colonies, is as well estab- 
lished as anything in English history. All this was urged in argument 
by the most eminent counsel in the discussion of the issues of law in 
the case of Hall v. Campbell, 1774, reported in Lofft. To the same 
effect is the statement of Mr. Cooke in his history of Virginia, Com- 
monwealth Series, 1884, 15. He says: 

4 'The plan of government for the colony was simple. Everything 
began and ended with the king. A great council of thirteen in Lon- 
don, appointed by himself, was to govern; a subordinate council in 
Virginia, appointed by the greater, was to follow his instructions. 



15 



Thus the colony of Virginia was to be ruled and directed in all its 
proceedings by the royal will, since the king appointed its rulers and 
directed under his sign manual in what manner they were to rule. 
# * # "What was plain about the charter was that the colony of 
Virginia would have no rights other than those which King James I 
chose to allow it. His 'Instructions' were to be the law and he held 
to that theory with all the obstinacy of a narrow mind to the end of 
his life." 

It was the same monarch who remodeled the original patent of 
1606 by the incorporation of the Council of Plymouth in the County 
of Devon for the colonization and government of New England. The 
characterization of his policy and his acts in respect to Virginia de- 
scribed his attitude and conduct towards New England. The patent 
to Mason and Gorges, intended to include the territory of Maine and 
a part of the present New Hampshire, is within the operation of the 
same general royal scheme. 

His patent to the Plymouth Colony (the Pilgrims), and that to 
Mason and Gorges for the territory afterwards known as Maine and 
New Hampshire (in part), with powers of government included by 
the same authority, emanated from the Council of Plymouth in the 
County of Devon, though the settlement of Plymouth Colony was or- 
ganized in the time of the first patent to the London or Virginia Com- 
pany. As was the case in Virginia, the government and the law-mak- 
ing machinery were provided at the time of or prior to the settlements. 
These last two patents emanated from delegated authority, and accord- 
ing to the opinion of the judges rendered in 1677, the powers of gov- 
ernment accompanying them were invalid. Nevertheless, the policy 
and methods of government inaugurated by James the First were 
continued on the same lines during his reign. His entire con- 
duct was what would have been expected if he had been creating a new 
government and giving new laws for a conquered or ceded territory, 
of which Jamaica, Grenada, New York and Canada were afterwards 
illustrations. 

The Reign of Charles the First. In the time of Charles the First, 
the company of Plymouth in the County of Devon, still continuing to 
be the corporate agent of the king, issued a patent to the Massachusetts 



16 



Bay Company or Colony, and this also purported to carry with it 
powers of government and authority to make laws. The king issued 
his confirmatory charter making Massachusetts Bay a charter colony 
in 1629, and this charter and the political government organized under 
it, survived until the charter was vacated by the English courts on 
scire facias in 1684. The acts of Charles the First indicate a purpose 
to constitute proprietary government for Maine and New Hampshire 
such as are described in the second class of the three sorts into which 
Blackstone divided the colonies with respect to their interior polity. 
As before stated, the palatinate of Mason never developed beyond 
the formulation of the instrument by which it was to be created, if, 
indeed, that instrument was ever actually executed by the king. The 
palatinate of Gorges eventually failed after various attempts on the 
part of himself and his heirs to avail themselves of its powers and 
privileges. A prominent feature of the colonial history of the reign 
of Charles the First is the attempt to vacate the charter of Massachu- 
setts Bay by proceedings in chancery. While a decree of forfeiture 
was entered up in 1635, that decree was disregarded and defied by 
the colony, and the English judges afterwards, in 1678, gave their 
opinion to the king that the decree of forfeiture was invalid. Deane's 
Hist. Charter of Mass. Bay, Memorial Hist, of Boston, 313. 

Nothing is discovered in this reign, which terminated in 1649, which 
indicates any policy essentially different from that pursued by James 
First in providing government for the American colonies. Connecticut 
in 1633, and Rhode Island in 1637, made their beginnings, but these 
commonwealths were built up from township organizations and town 
federations upon purely Puritan New England models, similar to those 
which had grown up in Massachusetts. There is no evidence that the 
municipal law of the Kingdom of England was transported to these 
settlements or that Charles the First was identified in any important 
way in providing a form of government or laws for these people. The 
immediate administration of the territory, disassociated from the 
business of providing civil government for it, was until 1635, nom- 
inally in the control of the Council of Plymouth in the County of 
Devon. 



r? 



The Commonwealth, 1649-1661. The inauguration of a system of 
interference with the trade of the colonies through the instrumentality 
of what are known as the "Navigation Acts," is a part of the history 
of this epoch. This established the principal precedent which was 
afterwards invoked on various occasions down to the time of the 
American Revolution, for the exercise of the right on the part of the 
Parliament of England of legislation, not only in the external affairs 
of the colonies, but in their internal concerns, taking form in the 
Stamp Act and other similarly obnoxious measures. The detriment 
occasioned by this legislation, however, was counterbalanced by the 
opportunities which the interval between the reigns of Charles the 
First and Charles the Second afforded the colonies for enlarging their 
independence, and strengthening their grasp upon the principle of 
home rule. 

Charles the Second, 1661-1685. The king in this period continued 
the policy of colonial government within the prerogative by issuing 
royal charters to Connecticut in 1662, and to Rhode Island in 1663, 
by separating New Hampshire from the union with Massachusetts Bay 
and creating a Province of New Hampshire by royal commission. New 
Hampshire thus became what Blackstone mentions in the first article 
of his classification of the colonies as a provincial establishment. The 
king gave New Hampshire a political constitution and organic law by 
the Cutt Commission, anct later another by the Cranfield Commission, 
which by its terms superseded that of Cutt, the one in 1679--'80, and 
the other in 1682. His exercise of powers of legislation was by the 
provision of forms and structures of political government in these New 
England plantations. It was the same in working principle that he 
pursued in reference to New York, the Jerseys, Pennsylvania, and 
Delaware, which were, in fact as well as in law, conquered or ceded 
territory. 

The Reign of James the Second, 16 85~1688. : This monarch legis- 
lated with a higher hand for the colonies of New England than any of 
his predecessors had attempted to do. He discontinued the province 
government in New Hampshire. He established the Dominion of New 

England, comprised of Maine, New Hampshire, Massachusetts Bay, 

2 



18 



and Plymouth, and added other territory until he had Connecticut, 
Ehode Island, the Narragansett country, New York, and the Jerseys 
included in it. He gave this government its political constitution by 
successive commissions and successive sets of instructions. He pro- 
vided for no popular assemblies, but directed that the local law-making 
power should be. vested in the governor and council, with the right 
retained in the Crown of review and repeal of all laws enacted by the 
method prescribed. This government collapsed when James I va- 
cated the throne. Here too, in this period, crown legislation is pre- 
dominant. The king gave the colonies such government as he pleased. 
He spared pre-existing local municipal la>w by express orders contained 
in his commissions and instructions. This is the method which would 
be entirely permissible under the law of nations in the exercise of the 
king's prerogative in providing government and laws for territory 
"acquired by contest or cession. 

The Reigns subsequent to the Revolution of 1688. There were 
eleven successive commissions after the revolution of 1688 emanating 
directly from the crown under which the organic law or political form 
of government for the Province of New Hampshire was provided prior 
to the termination of the province government in 1775. Manual of 
the N. H. General Court, 1879, pp. 1-17 ; 1 Laws of New Hampshire, 
1679-1702, pp. lxxxii-lxxxvii. 

Contemporaneously with the continuance of the province govern- 
ment in New Hampshire, Maine, Massachusetts Bay, and Plymouth 
were united under a charter government by the king, provided in 
1691, and the charter was subsequently amended. The king also pro- 
vided instructions to the governors of Massachusetts, which were a 
part of the royal legislation bearing directly upon the people of the 
colony. 

This review covers the entire colonial period. In that time the 
parliament provided no general system of laws for the colonies gen- 
erally, or for any particular one. As Lord Mansfield, states in the 
case of Hall v. Campbell: 

"After the conquest of New York, in which most of the old Dutch 
inhabitants remained, king Charles 2d changed the form of their con- 



19 



stitution and political government ; by granting it to the duke of York 
to hold of his crown, under all the regulations contained in the letters 
patent. " 

The political history of all the colonies indicate clearly that the 
others were governed in the same way by the direct intervention of 
crown authority by its prerogative, as was New York. 

Lord Mansfield further says in the same case : 

"It is not to be wondered at that an adjudged case in point has 
not been produced. No question was ever started before, but that 
the king has a right to legislative authority over a conquered country ; 
it was never denied in Westminster-hall; it never was questioned in 
parliament. Coke's Report of the arguments and resolutions of the 
judges in Calvin's case, lays it down as clear. If a king (says the 
book) comes to a kingdom by conquest, he may change and alter the 
laws of that kingdom; but if he comes to it by title and descent, he 
cannot change the laws of himself without the consent of parliament. 
It is plain he alludes to his own country, because he alludes to a 
country where there is a parliament. 

"The authority also of two great names has been cited, who. take 
the proposition for granted. In the year 1722 the assembly of Ja- 
maica being refractory, it was referred to Sir Philip Yorke and Sir 
Clement Wearge, to know 'what could be done if the assembly should 
obstinately continue to withhold the usual supplies.' They reported 
thus : ' If Jamaica was still to be considered as a conquered island, the 
king had a right to levy taxes upon the inhabitants; but if it was to 
be considered in the same light as the other colonies, no tax could be 
imposed on the inhabitants but by an assembly of the island, or by 
an act of parliament. ' They considered the distinction in law as clear, 
and an indisputable consequence of the island being in the one state 
or in the other. Whether it remained a conquest, or was made a 
colony they did not examine. I have upon former occasions traced 
the constitution of Jamaica, as far as there are papers and records in 
the offices, and cannot find that any Spaniard remained upon the 
island so late as the restoration; if any, there were very few. To a 
question I lately put to a person well informed and acquainted with 
the country, his answer was, there were no Spanish names among 
the white inhabitants, there were among the negroes. King Charles 
2d by proclamation invited settlers there, he made grants of lands, h^ 
appointed at first a governor and council only ; afterwards he granted 
a commission to the governor to call an assembly. 



20 



"The constitution of every province, immediately under the king^ 
has arisen in the same manner ; not from grants, but from commissions 
to call assemblies; and, therefore, all the Spaniards having left the 
island or been driven out, Jamaica from the first settling was an 
English colony, who under the authority of the king planted a vacant 
island, belonging to him in right ,of his crown; like the cases of the 
island of St. Helena and St. John, mentioned by Mr. Attorney Gen- 
eral. 

"A maxim of constitutional law as declared by all the judges in 
Calvin's case, and which two such men, in modern times, as Sir Phillip 
Yorke and Sir Clement Wearge, took for granted, will require some 
authorities to shake. 

"But on the other side, no book, no saying, no opinion has been 
cited; no instance in any period of history produced, where a doubt 
has been raised concerning it * * 

It is said (Cooley's Blackstone, 1899, star paging 108, 4th Edition 
edited by J. D. Andrews, Note 4), that Lord Mansfield endorsed the 
summary of the law relating to the colonies as it appeared in the later 
editions of the original work as revised by the great commentator him- 
self. This is quite probable as both were known to be in accord on 
far reaching questions then urgent which related to the relations 
of the colonies with the mother country. 

It was customary for the king to reserve an appeal to himself and 
council in the last resort, and consequently the ultimate judicature 
was in the king. He certainly claimed and exercised a large measure 
of personal sovereignty in this regard in the jurisprudence of the 
American colonies. It is not necessary, from the point of view from 
which this discussion proceeds, to enter into the refinements of English 
law relative to the conduct of the king in this direction. Whether the 
king assumed to do this as a personal right or in the right of the 
crown, the actual assumption of the ultimate judicial function by the 
king, in one capacity or the other, is a fact of colonial history. 

The king also reserved to himself, certainly in his later com m issions 
and charters, the right to approve, amend and repeal the acts of the 
colonial and province legislatures, as well as those of the proprietary 
plantations. His decrees in the commissions and the provisions of the 
charters required the transmission of the laws enacted by the local 



\ 



21 



assemblies in the plantations to him within three months after their 
enactment for the purpose of his confirmation or disallowance, under 
the powers assumed and exercised down to the time of American inde- 
pendence. Consult, for example, the commission to Samuel Allen to 
be governor of the Province of New Hampshire. 1 Laws of New 
Hampshire, Province Period, 1679-1702, p. 504. The terms of the 
other commissions to the province governors are practically the same 
as the one to which special reference is made. 

It is sufficient to observe that the exercise of such powers on the 
part of the king, whether they are considered as being within or with- 
out the legitimate prerogative, is utterly inconsistent with the pres- 
ence of that part of the pre-existing common law of England which is 
commonly termed municipal law, in its entirety or in any of its parts 
by the operation of any national law from the beginning of the colonial 
period to its termination. 

II. 

A REVIEW OF THE CASE LAW EMANATING FROM THE 
COMMON LAW COURTS OF ENGLAND IN THE COLONIAL 
PERIOD DISCLOSES NO INSTANCE OF A DEFINITE JUDG- 
MENT OR JUDICIAL OPINION TO THE EFFECT THAT THE 
AMERICAN COLONIES WERE TO BE REGARDED AS IN LAW 
ACQUIRED BY DISCOVERY, WITHIN THE INTENTMENT OF 
THE RULES OF CALVIN'S CASE. 

The reports and the text writers of England in the period prior to 
the independence of America are in accord on the question whether 
those possessions were to be regarded as acquired by conquest. It 
will not be questioned that Coke, Hale, Holt, and Mansfield, stand pre- 
eminent among the great English common law judges in this period. 
Holt held the office of chief justice from the Revolution of 1688 to 
1709, midway in the development of the English-American colonies. 
Two cases which have always stood as landmarks in the case law rela- 
tive to the colonies were brought under the cognizance of the Court of 
King's Bench in the time in which Holt was chief justice. The first 
is that of Blankard v. Galdy, 1693, 4 Mod. Reports, 222 ; Id., 2 Sal- 



22 



keld, 411. The other is Smith v. Browne and Cooper, 1706, 2 Salkeld, 
666. These cases must be read and considered together, because one is 
the complement of the other, and in both the decisions and reasons of 
the Court of King's Bench are pronounced by Chief Justice Holt. 

The first restates the rules covering the extension of the laws of 
England into newly-acquired territory. The statement is as follows: 

* ' 1st ; In case of an uninhabited country newly found out by Eng- 
lish subjects, all laws in force in England, are in force there; so it 
seemeth to be agreed. 

2dly, Jamaica being conquered, and not pleaded to be parcel of the 
kingdom of England, but part of the possessions and revenue of the 
crown of England, the laws of England did not take place there, until 
declared so by the conqueror or his successors. The Isle of Man and 
Ireland are part of the possessions of the crown of England; yet retain 
their ancient laws ; That in Davis 36, it is not pretended, that the cus- 
tom of tanistry was determined by the conquest of Ireland, but by 
the new settlement made there after the conquest ; that it was im- 
possible the laws of this nation, by mere conquest, without more, 
should take place in a conquered country; because, for a time, there 
must want officers, without which our laws can have no force ; that if 
our law did take place, yet they in Jamaica having power to make 
new laws, our general laws may be altered by theirs in particulars; 
also they held, that in the case of an infidel country, their laws by 
conquest do not intirely cease, but only such as are against the Law of 
God; and that in such cases, where the laws are rejected or silent, 
the conquered country shall be governed according to the rule of 
natural equity." 

Although in Hall v. Campbell Lord Mansfield apparently accords 
Jamaica a different status before the law by reason of the entire change 
of the population from Spanish to English, nevertheless in Blankard 
v. Galdy the decision goes on the admission that the island is con- 
quered territory. This enunciation of the law leaves the question open 
as to whether the American colonies of the class to which Virginia 
and Massachusetts were assignable should be regarded in law as con- 
quered territory. Without a specific application of these rules to one 
of the representative colonies outside of the territory of the Dutch and 
Swedish possessions, the question might have continued open and 
undecided to the end of the colonial period. 



28 



The case of Smith v. Browne and Cooper, however, arose at a time 
.when it could be considered and disposed of in its proper legal relations 
to the decision of Blankard v. Galdy. The case of Smith v. Browne 
and Cooper is reported in a limited space ; therefore the entire text is 
presented. The report, 2 Salkeld, 666, states the case, and is as fol- 
lows : 

"The plaintiff declared in an indebitatus assumpsit, for 20 1. for a 
negro sold by the plaintiff to the defendant, viz. in Parochia beatae 
Mariae de Arcubus in War da de Cheape, and verdict for the plaintiff; 
and on motion in arrest of judgment, 

"Holt, C. J., held, That as soon as a negro comes into England, he 
becomes free : one may be a villein in England, bnt not a slave. 

"Et per Powell J. In a villein the owner has a property, but it is 
as an inheritance ; in a ward he has a property, but 'tis a chattel real ; 
the lav/ took no notice of a negro. 

"Holt, C. J. You should have averred in the declaration, that the 
sale was in Virginia, and by the laws of that country, negroes are 
saleable ; for the laws of England do not -extend to Virginia* being a 
conquered country, their law is what the king pleases ; and we cannot 
take notice of it but as set forth; therefore he directed the plaintiff 
should amend, and the declaration should be made, That the^ defendant 
was indebted to the plaintiff for a negro sold here in London, but that 
the said-negro at the time of the sale was in Virginia, and that negroes 
by the laws and statutes of Virginia, are saleable as chattels'. 

' ' Then the attorney-general coming in, said, they were inheritances, 
and transf errable by deed, and not without : and nothing was done. ' ' 

Thus the same court with the same chief ^justice having decided 
these two cases must have considered them in their relations to each 
other, the last being the natural complement of the first. Blankart v. 
Galdy defined and ascribed the two classes of territorial acquisitions. 
SmitJi v. Browne and Cooper in assigning Virginia to the class of con- 
quered territory also inferentially but necessarily made the assignment 
as well for Massachusetts and the other provinces, plantations, and 
colonies, similarly acquired and situated as. for Virginia. 

It was held unequivocally that the laws of England (meaning un- 
questionably the ordinary rules of the municipal law as distinguished 
from the natural rights of persons which are the birthright of the sub- 

* The italics are not in the original text. 



24 



ject) did not extend to Virginia as that was conquered territory. 
Therefore while buying and selling slaves was not lawful in England, 
it might be lawful in Virginia. There can be but one line of reasoning 
from which the legal conclusion can result. The Virginia law within 
the boundaries of Virginia was not repugnant to the laws of England 
which did not extend to Virginia. The English common law did not 
permit slavery within that part of the kingdom in which it was in 
force within "the four seas." The ordinances of 1641, 1647, would 
have stood in the Court of King's Bench subject to the same holding 
of the law even if it had appeared that they changed the common law 
of England in the particulars specified in the colonial legislation. (The 
thirteen original states by positive statutes or by the law of usage and 
custom, i. e. f the local common law, recognized slavery as lawful to the 
end of the period of colonial dependence upon England. Scott v. 
Sandford, 19 How. 393; and Orr v. Quimby, 54 N. H., 621.) 

The analogy is carried further in an illustration from the constitu- 
tion of Jamaica, According to Lord Holt this was conquered terri- 
tory but if the English municipal laws did take place, proprio vigor e, 
in that island yet the people in Jamaica having power by the king's 
commission to make new laws might alter the English general laws by 
colonial enactments in particulars. The case is reported also in Holt, 
341 ; Smith v. Browne and Cooper, Id., 495. 

It is a well-known historical fact that the Barbadoes were uninhab- 
ited territory occupied by England by methods perfectly in consonance 
with the "discovered territory" theory or classification. Encyc. Brit. 
Tit,, Barbadoes. In Blanhard v. Galdy, nevertheless, Lord Holt states 
in the quoted text that these possessions are not governed by laws 
made in England but by their "own particular laws and customs." 
Thus in Barbadoes, freeholds were regarded by the local law as chattels 
till the creditors had been satisfied and then the lands descended to the 
heirs. It is common knowledge that this was not the law of England. 

"Lord Mansfield," says Lord Campbell (Lives of the Chief Jus- 
tices, Estes and Lauriat Ed., 1873, p. 300, et seq.), "gave earnest of 
his power to deal with questions of Colonial law in deciding that cer- 
tain English statutes passed in the reign of Richard II. and Edward 
VI. do not extend to Jamaica, which had been conquered from Spain 



25 



by Cromwell, and, having been abandoned by the Spanish inhabitants, 
had been re-settled by English emigrants : — ' If Jamaica is considered 
as a conquest,' said he, 'it would retain its ancient laws till the con- 
queror thought fit to alter them. If it be considered as a colony which 
we have planted (as it ought to be, the old inhabitants having left the 
island), then these statutes are positive regulations of police not 
adapted to the circumstances of a new colony, and therefore no part 
of that law of England which colonists are supposed from necessity 
to carry with them to their new abode. No act of parliament made 
after a colony is planted is construed to extend to it without express 
words to that effect/ " (Bex v. Vaughan, 4 Burr. 2494.) 

In 2 Lcl. Raymond, Queen v. Mayor and Aldermen of Norwich, 
1706, it was stated that an official bond not good by the laws of Eng- 
land was good by the law of Barbadoes. This was because the com- 
mon law of England was understood not to extend to Barbadoes (ex- 
cept as to natural rights of persons) and the local law of the island 
was consequently not in conflict with the common law of England at 
the point under consideration. The laws might be different and con- 
flicting if enforceable in the same territory. As the laws of neither 
jurisdiction were operative in the other they were not repugnant. 

In the English cases above cited it was remarked and apparently 
admitted, both on the part of the judges and the counsel by way of 
illustration, that in the insular colonies the English laws were not 
operative in many particulars besides those already mentioned. It was 
said relative to the English common law rule that no person could exer- 
cise a trade without being apprentice for seven years,— "now if this 
should be law in Jamaica it would destroy all the planters." "The 
statute of usury does not bind them for they allow there more for the 
loan of money than what is permitted ' ' by what would be the common 
law transplanted from England. The rule that no servant should be 
retained without a testimonial and that the justices should assess the 
wages of servants was not a law in the insular colonies by transmi- 
gration. 

Between 1717 and 1737, the cases of Winthrop v. Leckmere, Clarke 
v. Tousey, and PJiillips v. Savage were taken to the privy council on 
appeals. These cases involved a conflict between the colonial laws of 



26 



inheritance and the rules of the common law in England on the same 
subject, provided the latter had migrated with the settlers to the New 
. England colonies by force of the ' ' discovered territory ' ' theory. The 
eldest son of Wait Winthrop, the decedent, claimed the entire landed 
estate of which his father died seized in New England, according to 
the common law rule which obtained in England. A daughter asserted 
a right to an inheritance according to the colonial laws by which the 
estate would descend in shares to the children of a person dying seized 
of lands and intestate. The questions raised in these cases were worked 
out in this period of twenty years on judgments of the local courts 
and appeals therefrom to England. The result was that the colonial 
laws on this subject were finally and permanently sustained. Conn. 
Coll. Eec. vii, 191, note; Proc. Mass. Hist. Soc. pp. 64-80, 165-171; 
Adams, Emancipation of Massachusetts, 197. 

Many cases are to be found in the books published in the period of 
the dependency of the American colonies in which the abstract pos- 
tulates of Calvin's case are repeated and declared with various modi- 
fications. A fairly diligent search in the English reports of that time 
has failed to discover a single instance, however, in which an insular 
or American colony was, prior to 1775, held to have been regarded 
in law as " discovered territory," in such sense as to render the rule 
in Calvin's case applicable. 

In Hall v. Campbell, 1774, Lofft's Reports; Id., Cowper's Reports, 
the Court of King's Bench held in a remarkably well argued and 
carefully considered treatment of the subject, that Grenada, acquired 
by conquest, was in. the first instance the lawful sphere of legislation 
by the king without the parliament; but whenever he had erected a 
colonial government in the place with a grant of law-making powers 
to a local assembly, the crown prerogative of legislation without the 
parliament would be held to be waived and the king estopped from 
further exercise of crown legislation. It was also held, the point being 
specially raised, that an act of legislation by the king under the pre- 
rogative, in the first instance, before the creation of a colonial Legis- 
lature would be constitutional and valid, but after the establishment 
of such local law-making power the king could not by crown legisla- 
tion repeal his own act. His power to "make the law what he pleased" 



27 



had been determined by his own act in the creation of the colonial 
. government with a local Legislature. Thereafter wards the laws of the 
colony, whether given in the first instance by the king for territory 
and people acquired by conquest, or subsequently by local legislation 
after the authorization of the local assembly, could be altered only by 
the colonial assembly or the English parliament. 

Lord Mansfield in this case, which related immediately to Grenada, 
takes occasion to discuss the colonial status of Jamaica. He held that 
the latter colony, by reason of the complete substitution of an English 
white population for the former Spanish population, rendered the 
theory of "conquest" inapplicable in a practical sense. This gives 
added significance to the illustrations already cited regarding the 
differences between the common law in England and colonial laws in 
Jamaica relating to various subjects which were the themes of discus- 
sion or judicial opinion in the earlier English cases already cited. 

In a comment in the midst of the argument in Hall v. Campbell 
(Lofft 710), Mansfield remarked: 

"It is absurd, that in colonies they should carry all the laws of 
England with them; they carry only such as are applicable to their sit- 
uation : I remember it has been determined in the council : * There was 
a question whether the state of charitable uses operated on the island 
of Nevice [Nevis] : It was determined it did not; and no laws but such 
as were applicable to their condition, unless expressly enacted. ' ' 

In his treatment of the countries subject to the laws of England 
Blackstone, writing at a time very near the termination of the do- 
minion of England over American colonies (the first edition of his 
work being published in 1765), summarizes these relations to the 
home government with reference to the extension of the laws of Eng- 
land to them. He says (Introduction, star paging, 106, 107) : 

"Besides these adjacent islands, our most distant plantations in 
America, and elsewhere, are also in some respects subject to the Eng- 
lish laws. Plantations or colonies, in distant countries, are either such 
where the lands are claimed by right of occupancy only, by finding 
them desert and uncultivated, and peopling them from the mother 
country; or where, when already cultivated, they have been either 
gained by conquest, or ceded to us by treaties. And both these rights 



28 



are founded upon the law of nature, or at least upon that of nations. 
But there is a difference between these two species of colonies, with 
respect to the laws by which they are bound. For it hath been held, 
(Salk. 411, 666) that if an uninhabited country be discovered and 
planted by English subjects, all the English laws then in being, which 
are the birthright of every subject, (2 P. Wins. 75) are immediately 
there in force. But this must be understood with very many and very 
great restrictions. Such colonists carry with them only so much of the 
English law as is applicable to their own situation and the condition 
of an infant colony ;• such, for instance, as the general rules of inheri- 
tance, and of protection from personal injuries. The artificial refine- 
ments and distinctions incident to the property of a great and commer- 
cial people, the laws of police and revenue, (such especially as are en- 
forced by penalties,) the mode of maintenance for the established 
clergy, the jurisdiction of spiritual courts, and a multitude of other 
provisions, are neither necessary nor convenient for them, and there- 
fore are not in force. "What shall be admitted and what rejected, at 
what times, and under what restrictions, must, in case of dispute, be 
decided in the first instance by their own provincial judicature, sub- 
ject to the revision and control of the king in council : The whole of 
their constitution being also liable to be new-modelled and reformed 
by the general superintending power of the legislature in the mother 
country. But in conquered or ceded countries, that have already laws 
of their own, the king may indeed alter and change those laws; but, 
till he does actually change them, the ancient laws of the country re- 
main, unless such as are against the law of God, as in the case of an 
infidel country. (7 Rep. 17, Calvin's case. Show. Pari. C. 31.) 

"Our American plantations are principally of this latter sort, be- 
ing obtained in the last century either by right of conquest and driv- 
ing out the natives (with what natural justice I shall not at present 
inquire), or by treaties. And therefore the common law of England, 
as such, has no allowance or authority there ; they being no part of the 
mother country, but distinct, though dependent dominions. They are 
subject, however, to the control of the parliament; though (like Ire- 
land, Man, and the rest,) not bound by any acts of parliament unless 
particularly named. ' ' 

Blackstone wrote with the entire body of the case law. as it stood 
at the termination of our colonial period, in full retrospect. His state- 
ment represented the law learning of his time and the consensus of 
the authorities which were then available to him in the amplest meas- 



29 



ure. It is not the law of the later American opinion, let it be clearly 
understood in this connection, that is now being presented. 

If the opinions now re-cited were generally entertained in Old Eng- 
land and New England contemporaneonsly and harmoniously during 
an indefinite period prior to 1775, the attitude of both the govern- 
ments, the superior at home and the subordinate in the colony or prov- 
ince, would be determined, for that time by the common understanding 
of the law which restrained the operation of that part of the common 
law in England supposed to be comprehended in the term "municipal 
law" within the ancient kingdom of England. 

Judge Parker (Lecture at Lowell Institute, 1869, Hist. Soc. Pub. 
p. 386), says: 

"The true construction of the clause [as to the repugnancy] is that 
they shall make no laws contrary to, — antagonistic to, — in contra- 
vention "of, the laws of the realm which extended or should extend 
over them* as inhabitants of the colony, and which were to be their 
paramount law. 

"We are thus brought to the question whether any and what laws 
of the realm were in force in the colony at the time of the charter and 
emigration. Happily we can settle this question by authority. It is 
agreed that the law of the conqueror does not extend over the con- 
quered country until the conqueror pleases to put it in force there. 
And although we now hold that the title of the crown to the greater 
portion of this country was by right of discovery, it was held by the 
courts of England, long subsequent to the reign of Charles I, to be 
a title by conquest. Chief Justice Holt in the Court of King's Bench, 
in the 4th of Anne, said : ' The laws of England do not extend to Vir- 
ginia, being a conquered country, their law is what the king pleases. 'f 
And Blackstone, lecturing as late as 1756 says, 'Our American plan- 
tations are principally of this latter sort . [conquered or ceded coun- 
tries] , being obtained in the last century, either by right of conquest, 
and driving out the natives (with what natural justice I shall not at 
present inquire), or by treaties. And, therefore, the common law of 
England, as such, has no allowance or authority there. ' He adds that 
they are 'not bound by any acts of parliament, unless particularly 
named.' "J 

The First Charter and the Early Religious Legislation of Massa- 
chusetts, Lowell Inst. Lecture, Society's Pub., 387; pamphlet ed., p. 31. 

* The italics are not in the original text, 
t Salkeld's Reports, Vol. I [II], p. 666. 
| Blackstone's Com., Vol. I, p. 108. 



30 



It would not seem necessary to multiply authorities further in sup- 
port of the proposition last advanced. It was the evident construction 
of the law of nations and of the common law in England, as declared 
by the great common law courts, that the American colonies, whether 
with or without reference to the hard and fast rules of Calvin's case 
and probably without strict regard to them, were at liberty to enact 
statutes and to develop a local common law by usage and custom in 
most respects as if a free and open field were conceded to them for 
working out local systems of law. 

The next proposition in the natural order of argument relates to the 
attitude of the New England colonies with respect to the subject above 
considered. 

HI. 

IN THE PERIOD IN WHICH NEW HAMPSHIRE AND 
MASSACHUSETTS WERE UNITED IN THE SAME COLONIAL 
GOVERNMENT, THE LAW OF NATIONS WAS HELD BY THE 
COLONIAL STATESMEN TO HAVE BEEN THE SAME AS IT 
WAS EXPOUNDED A HUNDRED YEARS LATER IN THE 
COMMENTARIES OP BLACKSTONE. 

The evidence available on this point is derived from the acts of the 
general court in the time of the Union, from the contemporary state- 
ments of men in high authority, qualified to declare the current opinion 
and other representations on the subject both from friendly and hostile 
commentators on the polity of the New England Puritan. 

The General Court officially declared in the period of the Union that 
while they were subject to the paramount sovereignty of the king of 
England and while they recognized the political dominance of the 
royal authority, they insisted that the laws of England (meaning of 
course the general municipal law of the home kingdom), were 
"bounded within the four seas," and that they did not "reach 
America." 5 Mass. Bay Records, 200; Document containing this 
vote, Appendix A. 

It will be conceded that one of the best authorities that could be 
invoked on this question of the attitude of the founders of Massachu- 
setts Bay Colony and of those who were in political control in the 



i 



31 

union of Massachusetts Bay and New Hampshire in denial of the 
operative force of the laws of England in the American plantations, or, 
at least, in New England, is Governor Winthrop. 

He says (History of New England, Savage's Edition, Vol. 2, p. 351, 
352) : 

"Though by our charter we are not bound to them [the laws of 
England,] our fundamentals are framed according to them. Our 
allegiance binds us not to the laws of England any longer than while 
we live there, for, the laws of the parliament of England reach no 
further nor do the king's writs under the great seal go any further. 
If by repugnant they mean and as the word .truly imports, and as 
by the charter must needs be intended, they have no caufe to complain, 
for we have no laws diametrically oppofite to thofe of England, for 
then they muf t be contrary to the law of God and of right reaf on. ' ' 

In the collection of original papers relative to the history of the col- 
ony of Massachusetts Bay, known as Hutchinsonjs Collection, the re- 
monstrance and petition of Robert Child and others appear on page 
188, in which these complainants declare that "we cannot according to 
our judgments discern a settled form of government according to the 
laws of England which may seem strange to our countrymen, yea to 
the whole world, especially considering we are all English*." 

And, again, they say: "Our humble desire and request is, that you 
would be pleased to consider of our present condition and upon what 
foundation we stand, and unanimously concur to establish the funda- 
mental and wholesome laws of our native country, and such others as 
are no ways repugnant to them and unto which all of us are most accus- 
tomed. ' ' 

These were people who were communicants in the Church of Eng- 
land and were expressing their grievances on account of being de- 
prived by the Puritan government and laws of various ecclesiastical 
privileges which they would have enjoyed at home under the common 
law. 

This remonstrance was dated in 1646. 

The declaration of the General Court of Massachusetts Bay concern- 
ing this remonstrance is dated the fourth day of the ninth month, 1616, 
and presents a comparison of the principal provisions of the Magna 



32 



Charta and the common laws of England in parallels with the funda- 
mentals of the laws of Massachusetts Bay. 

These tables are followed by an argument, presenting the contention 
of the colony that their laws, while in some particulars necessarily dif- 
fering from the common law of England, are not repugnant to the 
principles of Magna Charta, and with due reference to the fundamen- 
tal and common laws of England. 

The declaration contains the following statement of the Puritans' 
contention : 

' ' As for those positive laws or statutes of England which have been 
from time to time established upon the basis of the common law, as 
they have been ordained upon occasions, so they have been alterable 
still upon like occasion, without hazarding or weakening the founda- 
tion, as the experience of many hundred years hath given proof e of. 
Therefore there is no necessitie that our owne positive laws (which 
are not fundamental) should be framed after the patterne of those of 
England, for there may be such different respects, as in one place may 
require alteration, and in the other not." 

Edward Randolph, who was making investigation for the home 
government in the colonies, writes in 1679 (Toppan, Memoir and 
Letters of Randolph, Vol. 2, p. 205), as follows: 

"He," (Governor Leverett), "freely declared to me that the Laws 
made by Our King & Parliamt obligeth them in nothing but what 
confifts with the Intereft of New England, that the Legislative power 
is & abides in them freely to act & make laws not repugnant to the 
Laws of England by a Charter granted to them by King James. And 
that all matters in difference are to be concluded by their final deter- 
mination denying any appeal to his Maty ; f ince my coming f ome have 
affirmed that it is not in his Maty's power to retrench their Liberties, 
but may enlarge them if he please." 

In a written report to Lord Coventry dated June 17 of the same 
year, Mr. Randolph further remarks {Id., p. 231) : 

"No law is in force or efteeme there but fuch as are made by the 
generall court, and therefore it is accounted a breach of their priv- 
iliges and a betraying of the liberties of their commonwealth to urge 
the obfervation of the lawes of England or his Majefties commands." 



33 



Mr. Chalmers, writing a hundred years afterwards, makes the fol- 
lowing comments which indicate how universal was the opinion in 
the colonial period that the Puritan colonists adhered to a practice as 
well as an opinion that was identical with it which was declared by 
Blackstone to be the law. 

Mr. Chalmers says (Annals, Vol. 1, p. 144, quoted in Toppan, 
Memoir and Letters of Randolph, Vol. 1, p. 48) : 

"Those emigrants [the Puritans] were men, however, above all 
worldly ordinances.' The laws of England, so justly celebrated by the 
panegyric of nations, they considered as not binding on them ; because 
inapplicable to so godly a people * * # They verbally admitted 
the King to be the supreme head of the church, and promised all lawful 
obedience to his power; But they asked not his consent when the 
church was established. And they would probably [have] deemed the 
royal interference as an invasion of their chartered rights." 

The following excerpt presenting the same historical fact, is from 
Mr. Deane's article on The Charter of King Charles the First, 1 Me- 
morial History of Boston, 367 : 

"Several addresses were made to the King from the General Court 
while the agents were in England, and several laws were made to re- 
move some of the exceptions which were taken in England, 
particularly an act to punish treason with death. Oaths of 
allegiance . to the King were required. The King 's arms were 
ordered to be carved and put in the court-house. With regard to the 
Acts of Trade, they confessed in a letter to their agents that they had 
not conformed to them. They said they 'apprehended them to be an 
invasion of the rights, liberties and properties of the subjects of his 
Majesty in the colony, they not being represented in Parliament; and, 
according to the usual sayings of the learned in the law, the laws 
of England ivere bounded within the four seas, and did not reach 
America.'* However, as his Majesty had signified his pleasure that 
those acts should be observed in the Massachusetts, they had made pro- 
vision, by a law of the colony, that they should be strictly attended 
from time to time, although it greatly discouraged trade and was a 
great damage to his Majesty's plantation." (Hutchinson, Mass. Bay, 
i, 322.) 

"Thus we hear for the first time," says Chalmers, "that the col- 

*Italics are not in the original text. 
3 



34 



onists, though in the same breath swearing allegiance to the Crown of 
England, were not bound by the acts of Parliament, because they were 
not represented in it." 

The New England colonists did not know that, by force of the Vir- 
ginia emigration of 1606, all the statutes of the realm of England of 
date prior to March 24, of that year, had been transformed as to them 
by operation of the law of nations from lex scripta to lex non scripta 
and that that body of law had been operative in New England in the 
first colonial period. Had they taken this view of the situation they 
would have apprehended the fact that they had the body of the com- 
mon law of England to which should be added the English statutes of 
enactment before March 24, 1606, in complete and general operation 
in their midst, all over their territory, and possibly in the period be- 
tween that date and 1620. They acted upon an entirely different as- 
sumption. They selected, adopted and re-enacted from the statute 
laws of England such laws as they deemed appropriate to their sit- 
uation. To those thus selected , they added such others as they 
thought needful, in the same way that every state develops a system 
of common and statute law. 

Mr. Joseph Hills, who prepared the compilation of 1643, which was 
published in 1649, in a report which has been preserved describes how 
these laws were adopted. 

He says : 

"First it pleased the General Court to employ me in a shire Com- 
mittee to draw up a Body of Laws in which I took unwearied pains, 
perusing all the Stat. Laws of England in [Pulton?] at Large, out 
of which I took all such as I conceived suitable to the condition of 
this Commonwealth: Which with such others as, in my observation, 
experiences and serious studies I thought needful, all which I drew 
up in a Book, close written, Consisting of 24 pages of paper, in folio, 
which upon the Committees perusal, — viz. Mr. Noel, Mr. Pelham, Mr. 
Thomas Sheppard, — I was appointed to draw upp for the use of the 
General Court." Whitmore's Bibliographical Sketch, 1890, p. 79. 



35 



IV. 

. THE IMPRACTICABILITY OF THE ADAPTATION OF THE 
GENERAL PRINCIPLES OF THE ENGLISH COMMON LAW 
WHICH BELONGED IN THE CLASS COMMONLY DESCRIBED 
AS THE MUNICIPAL LAW APPEARS IN THE WIDE EXTENT 
OF WHAT WAS NEVER ADOPTED IN FACT OR IF TRANS- 
MITTED IN LAW WAS REJECTED IN FACT. 

It is agreed on all sides that the ecclesiastical law of England was 
not adopted. It was as obnoxious to the Puritans of Massachusetts, 
New Hampshire, and Connecticut as it was to the Quakers of Penn- 
sylvania. 

"As no ecclesiastical tribunal or jurisdiction is required in a colony 
or settlement where there is no established church, the ecclesiastical 
law of England cannot be treated as part of the law which settlers 
carry with them from the mother country." Natal (Bishop), In re, 
2 Moore P. C. C, N. S. 115 ; 11 Jur., N. S. 353 ; 13 W. R. 549 ; 12 L. 
T., N. S. 188. 

The New England town system was a purely colonial development. 
''Municipal corporations," says Chief Justice Perley, "in England 
bear much less resemblance to towns in this country than to private 
corporations which are charged with the performance of public 
duties." I Dillon, Municipal Corporations, Ed. 3, sect. 29 (12), citing 
Eastman v. Meredith, 36 N. H. 284. 

The criminal laws which were in force in Massachusetts and New 
Hampshire from 1641 to 1692 were local enactments manifesting wide 
and radical departures from the common law in England. Not only 
did they enact criminal codes including provisions for capital punish- 
ment, but they declared that these laws were based upon the Mosaic 
law or as they termed it the law of God. In cases in which there was 
no positive provisions to reach unforseen offences discretion was com- 
mitted to the magistrates to impose such penalties as they deemed ap- 
propriate. On important occasions reference might be had to the 
elders for their judgment and the elders were referred to the scrip- 
tural authorities and not to the common law in doubtful cases. The 
criminal law of Plymouth Colony was enacted in accordance with the 



36 



same theories and the New Hampshire Assembly, on the organization 
of their government in 1680, borrowed all their criminal laws from 
Plymouth Colony. Notes Historical and Bibliographical on the Laws 
of New Hampshire, by Albert H. Hoyt, p. 6; The Puritan Republic 
of Massachusetts Bay in New England, by Daniel Wait Howe, Ch. Ill, 
p. 48, et seq. 

Referring to the abandonment of the legal procedure which had 
place in the common law in England by the pioneers of New Hamp- 
shire the Supreme Court of this state has said : 

"The first colonists of New England were fishermen and farmers, 
their leaders were clergymen, and though they brought with them a 
general idea of English law and English liberty, the registers of writs 
were sealed books to them as much as they are to us at this day. Instead 
of attempting to follow the forms of the register, they devised pro- 
cesses of their own. The recital of them will show that no reference 
for any ancient forms existed among the courts here * # *. We 
regard the ignorance of the first colonists of the technicalities of the 
common law as one of the most fortunate things in the history of the 
law; since, while the substance of the common law was preserved, we 
happily lost a great mass of antiquated and useless rubbish, and gained 
in its stead a course of practice of admirable simplicity, and one which 
seems to us far better than the most improved codes of practice which 
have been recently introduced elsewhere." 

B., C. & M. R. B. v. State, 32 N. H. 215, 230, 231. 

In Cole v. Lake Co., 54 N. H., 287, the Court say, opinion by 
Ladd, J. : 

"They must have known, as Judge Cooley says, that many of its 
features were exceedingly harsh and repulsive, and gave unmistakable 
proofs that they had their own origin in times of profound ignorance, 
superstition and barbarism; that the feudal system, which was essen- 
tially a system of violence, disorder, and rapine, gave birth to many 
of its maxims; and that some of these, long after that system had 
passed away, might still be traced in the law, especially in the rules 
which govern the acquisition, control, and enjoyments of real estate. 
Cooley 's Const. Lim. 22. Hence the exception. Accordingly it has 
many times been held, under our constitution, that if there is any part 
of the common law incompatible with our institutions, or not adapted 
to our circumstances, it does not prevail here." 



87 

Continuing in the same opinion (p. 286) the Court say: 

' 1 They who brought the general body of the common law with them 
to this region might well have omitted to bring the feudal rule, not 
because it was fabricated in a barbaric age, but because it was desig- 
nated and fitted to perpetuate a barbaric condition; not because it 
originated in a foreign land, but because it was not suited to the com- 
monwealth which our foreign ancestors came to this country to or- 
ganize ; not because, as a part of the military system of Europe, it was 
less necessary in feudal times than other compulsory methods of filling 
armies and navies in other times, but because the general feudal re- 
lation of lord and vassal not being an incident of New Hampshire 
• civilization, and the particular debt of personal service due from the 
vassal to the lord (which the heirs of the vassal might be incompetent 
to perform) not being a universal consideration of the conveyance of 
New Hampshire real estate, the feudal rule (requiring the word 
'heirs' as evidence of the lord's intention to assume the risk of his 
vassal's heirs being incapable of the stipulated service) was inap- 
plicable to the situation and circumstances of the emigrants, and im- 
plied a servitude inconsistent with the principles of personal freedom 
and equality which pervaded their social and political plan, hostile to 
the general object of their emigration, and particularly subversive of 
that absolute ownership of the soil which they specially sought in the 
New World." 

In Lisbon v. Lyman, 49 N. H., 581, which related to the common law 
as to burden of proof in some cases not applicable to conditions here, 
the court say, opinion by Doe, J. : 

"Such things as these, our emigrant ancestors intended to leave 
behind them when they came to New Hampshire. An English misun- 
derstanding or perversion of the common law, is not necessarily our 
law. And if there is any part of the common law incompatible with 
our institutions, or not adapted to our circumstances, it does not pre- 
vail here." 

In Houghton v. Page, 2 N. H., p. 44, May Term, 1819, the Court 
say, Woodbury, J., discussing the English common law rule that in- 
terest on money loaned is unlawful : 

"It therefore follows, that, if the common law of England concern- 
ing interest should be adopted, we must hold void all contracts for 
any quantity of interest, however small and reasonable. But, in this 
enlightened age, such a rule could no more be tolerated than the 



38 



absurd principles of the common law concerning witchcraft and 
heresy. 

There can be in force here only those principles of the common law, 
which have been expressly adopted; or which, being applicable to our 
state of society and of jurisdiction, and founded on axioms of intelli- 
gent reason, may be considered as impliedly binding. Chapman's 
Rep. 121 6 John. Rep. 423—3 Wheat 365—15 John 115—2 Burr's 
Trial 404—4 Burrow's Rep. 2343— Doctor & Student, 64, 14, 161." 

State y. Rollins, 8 N. H., p. 560, 1837, Parker, J. : 

"The common law, so far as it was applicable to the state and con- 
dition of the people and the circumstances of the country, was cer- 
tainly introduced here for the regulation of the courts of justice on 
the organization of the province of New Hampshire as a separate gov- 
ernment; with a right, however, in the legislative power, to make pro- 
visions for peace and good government, subject to a negative on the 
part of the crown." (Common law as to kidnapping is in force in 
this state.) 

In the same opinion at least four exceptions to the adoption of the 
English common law in New Hampshire are stated. These exceptions 
apply (1) where the body of that law was not applicable to the gov- 
ernment instituted here; (2) where it was not applicable to the condi- 
tion of the people here ; ( 3 ) where other provisions, different from the 
statute or common law of England, had been made by local statutes; 
and (4) where the English law had been altered here by local usage. 
Id., 561. 

It is necessary also to read the opinions of the same court by the 
same judge in State v. Gilmanton, 9 N. H. 463, and in Nudd v. Hobbs, 
17 N. H. 526, 527, in connection with the rules and exceptions which 
are specified, as above indicated, in State v. Rollins. These are the 
cases that disclose exactly what the court intended by the exceptions as 
to local statutes and local usages. There can be no mistake on this 
point because, in Nudd v. Hobbs, the ordinance of 1641 is mentioned 
as one that was enacted in the time of the union with Massachusetts 
Bay and operative and in force in New Hampshire. In this imme- 
diate connection, also, in Nudd v. Hobbs, 527, State v. Rollins is cited. 
The rule laid down in State v. Gilmanton, which stops riparian owner- 
ship on "ponds, lakes, and other large bodies of standing fresh 



Page 38, line 32, insert after "1641," a comma, and the figures 
"1647." 



39 



water," is absolutely incompatible with the rule of the English com- 
mon law as expounded in Bristow v. Cormican and in Hardin v. Jor- 
dan. Therefore, reading State v. Rollins, State v. Gilmanton, and 
Nudd v. Hobbs, all nearly contemporary with each other, together, it 
will be apparent that they settle the common law of New Hampshire 
as continuing from 1679, at least, and to the effect that by it or by 
operation of the ordinances of 1641, 1647, great ponds were public 
according to the usages evidenced by them. 

See, also, Judge Parker's later views, as expressed in Lowell Insti- 
tute Lecture, cited ante. 

For further comments on and endorsement of the rule in State v. 
Gilmanton, see State v. Gilmanton, 14 N. H. 478 ; Concord Co. v. 
Robertson, 66 N. H. 2, 19; State v. Sunapee Dam Co., 70 N. H. 460 
and 461. 

These views are also sustained by the opinions of Chief Justice 
Smith, Thompson v. Bennett, Smith's Reports, 337 (1814) ; Treatise 
on Probate Law, Id., 503; Clement v. Burns, 43 N. H. 617, 621. 

"It has many times been held under our constitution that, if there is 
any part of the common law incompatible with our institution or not 
adapted to our circumstances, it does not prevail here." Lisbon v. 
Lyman, 49 N. H. 582, and cases there cited; Cole v. Lake Co., 54 N. H. 
286. 

In 66 N. H. Reports, p. 6, 1889, in Concord Co. v. Robertson, the 
court say: "Common law, as well as statute law, grows out of the sit- 
uation and circumstances of the people." Brown v. Langdon, Smith 
(N. H.), 178, 182. Differences of condition produce differences of law. 
A great proportion of the English common law "grew into use by 
gradual adoption, and received from time to time the sanction of the 
courts of justice, without any legislative act or interference. It was 
the application of the dictates of natural justice and cultivated reason 
to particular cases." I Kent Co., 471. The dictates of justice and 
reason, applied to the situation and circumstances of New Hampshire 
settlers, were in many respects materially different from the law of 
England. ' ' To such a colony there is no doubt that the settlers from 
the mother-country carried with them such portion of its common and 
statute law as was applicable to their new situation." Parke B., in 



40 



Kielley v. Carson, 4 Moore P. C. 63, 84; Phillips v. Eyre, L. R. 6 Q. B. 
1, 19. The immigrants brought, not the whole body of written and 
unwritten laws under which they had enjoyed rights and suffered 
wrongs, but only such as were suited to their condition and wants, con- 
sistent with their new state of society, and conformable to the insti- 
tutions they intended to establish and the general course of policy 
they intended to pursue." 

In Lindley v. Coats, 1 Ohio, 245 (1823), the Court say: 

"It has been repeatedly determined by the courts of this state that 
they will adopt the principles of the common law as the rules of de- 
cision, so far only as those principles are adapted to our circum- 
stances, state of society and form of government. In no instance 
have the ancient common law modes of conveyance, as such, been 
adopted in this state; and long anterior to the settlement of this 
country, they have given way to the comparatively modern mode of 
assurance by deeds of lease and release," bargain and sale, etc. There 
is nothing in our circumstances or state of society that would seem to 
require the adoption of a principle so pregnant with mischief as that 
the title to real estate might rest in and be evidenced by parole only. ' ' 

It was held in this case that the common law rule that land might 
be exchanged by parole was not adopted. 

In Bloom v. Richards, 2 Ohio, p. 390, 1853, the Court in an opinion 
by Thurman, J., say: 

"The English common law, so far as it is reasonable in itself, suit- 
able to the condition and business of our people, and consistent with 
the letter and spirit of our Federal and State constitution and statutes, 
has been and is followed by our courts, and may be said to constitute 
a part of the common law of Ohio. But wherever it has been found 
wanting, in either of these requisites, our courts have not hesitated 
to modify it to suit our circumstances, or, if necessary, to wholly de- 
part from it." 

In Commonwealth v. Hunt, 4 Metcalf 's Reports, p. 123, the Court 
by Shaw, C. J., say: 

"All those laws of the parent country, whether rides of the common 
law, or early English statutes, which were made for the purpose of 
regulating the wages of laborers, the settlement of paupers and making 
it penal for any one to use a trade or handicraft to which he had not 



41 



served a full apprenticeship — not being adapted to the circumstances 
of our colonial condition — were not adopted, used or approved, and, 
therefore do not come within the description of the laws adopted and 
confirmed by the provision of the constitution already cited.' " 

In Wheat on v. Peters, 8 Peters, 659, 1834, the Court, opinion by 
McLean, J., said : 

"It is insisted, that our ancestors, when .they migrated to this coun- 
try, brought with them the English common law, as a part of their 
heritage. That this was the cause, to a limited extent, is admitted. 
No one will contend that the common law, as it existed in England, 
has ever been in force in all its provisions, in any state in the union. 
It was adopted, so far only as its principles were suited to the con- 
dition of the colonies; and from this circumstance we see, what is 
common law in one state, is not so considered in another. The judicial 
decisions, the usages and customs of the respective states, must de- 
termine how far the common law has been introduced, and sanctioned 
in each." 

In Powell v. Sims, 5 W. Va., 4 (1871), the Court say: 

"And I believe quite all of the states, by like provisions, have also 
adopted the common law so far as it is not inimical to the constitu- 
tion. But although so adopted, it was early held by the courts of 
Virginia, as well as of the other states, that the common law was in 
force in this country only so far as it was in harmony with our in- 
stitutions, and its principles applicable to the state of the country and 
the condition of society." 

"In Pennsylvania," says Justice Field, in Packer v. Bird, 137 U. S. 
668, "the common law doctrine [relative to navigability of rivers] 
was never recognized. In Monongahela Bridge Co. v. Kirk, 46 Penn. 
St. 112, 120, the Supreme Court of that State, in holding that the river 
Monongahela was a navigable stream, and that its soil up to low-water 
mark, and the river itself, were the property of the Commonwealth, 
said: 'We are aware that by the common law of England such streams 
as the Mississippi, the Missouri, the rivers Amazon and Platte, the 
Rhine, the Danube, the Po, the Nile, the Euphrates, the Ganges and 
the Indus, were not navigable rivers, but were the subject of private 
property, whilst an insignificant creek in a small island was, elevated 
to the dignity of a public river, because it was so near the ocean that 
the tide ebbed and flowed up the whole of its petty course. The Roman 
law, which has pervaded Continental Europe, and which took its rise 



42 



in a country where there was a tideless sea, recognized all rivers as 
navigable which were really so, and this common sense view was 
adopted by the early founders of Pennsylvania, whose province was 
intersected by large and valuable streams, some of which are a mile in 
breadth.' " 

It was here held that the common law doctrine as to ancient lights 
was never adopted. 

In an article in the Central Law Journal, Vol. 53, p. 349 (1901), a 
commentator on a decision of the Supreme Court of North Carolina, 
rendered in 1901, discussing the law of navigable waters somewhat at 
length, makes clear the fact that the doctrine of state ownership of the 
beds of navigable streams has been so far adopted and extended that 
the rule laid down by Mr. Cowen as unquestioned {ex parte Jennings, 
6 Cowep, 545), has now been rejected by more states than there are 
which adhere to the rule of riparian proprietorship. After citing 
cases in 12 states, most of them in the eastern section, in which the 
courts sustain the doctrine of private ownership of the bed of navi- 
gable streams by the riparian proprietors, the Journal commentator 
says : 

"In all these states the owners of lands situated on the banks of 
navigable streams own the river-beds, subject to the public right of 
navigation. In nearly all the other states of the Union, where this 
question has been decided, the common-law rule has been rejected, and 
all navigable waters, i. e., those waters which are navigable in fact or 
which do or Avhich may afford a channel for commerce, — belong to the 
state in fee, the rights of riparian owners extending only to the low 
water mark. Allegheny City v. Moorehead, 80 Pa. St. 118 ; State v. 
Tomlinson, 77 N. Car. 58; In re Garnett 141 U. S. 1; McMannus v. 
Carmichael, 83 Iowa, 1; Benson v. Morrow, 61 Mo. 345; Webb v. 
Demopolis, 95 Ala. 116; Renwick v. Railroad, 49 Iowa, 664, 669 ; Hahn 
v. Dawson, 134 Mo. 518; Gilbert v. Emerson, 55 Minn. 254; St. Louis 
Ry. Co. v. Ramsey, 53 Ark. 314; Weise v. Iron Co., 13 Oreg. 496; 
Shoemaker v. Hatch, 13 Nev. 261; Wood v. Fowler, 26 Kan. 682; 
Bucki v. Gone, 25 Fla. 1 ; Lux v. Haggin, 69 Cal. 255 ; Heckman v. 
Smelt, 99 Cal. 303, 32 Cent. L. J. 284, 297. 

"But whether we embrace within the legal meaning of the term 
'navigability' the proprietary right of the government in the bed of 
the streams as well as the right of easement to the use of the stream as 
a public highway, or only the latter signification, the test of the naviga- 



43 



bility is the same in one case as in the other. The ebb and flow of the 
tide is absolutely no test at all of the navigability of waters in this 
country under any phase of the question, — the final and conclusive 
test in all such cases is whether the stream is navigable in fact. ' ' 

Nothing can be more manifest to observers of the modern develop- 
ment and adaptation of common law rules, as the subject has come 
before one after another of the state courts, than that those which re- 
late to the title to lands under navigable streams are in a state of 
transition and that there is a decided and general tendency in favor 
of the theory of state proprietorship. 

In Walker's American Law, 7th Ed., p. 54, it is said: 

"In truth, however, there is a great reluctance in recognizing the 
English common law as of absolute and binding authority down to 
any period. The doctrine repeatedly declared by our judges is, that 
they will be bound by it, only so far as they consider it suited to our 
state of society and form of government. The only certainty there- 
fore is, that we have something that we call common law, scattered at 
random over a vast surface. But precisely what it is, or how far it 
extends, is hidden in the breasts of our judges, and can only be ascer- 
tained by experiment. ' ' 

The Chancery jurisdiction and powers exercised by the common 
law in England had such a slight claim to adoption, not to say orig- 
inal transmigration by operation of the law of nations, in New Hamp- 
shire as a part of colonial law that the question was not finally de- 
termined until Lumber Co. v. Company, 65 N. H., 1889, and then only 
after a forensic contest which had occupied the courts" nearly twenty 
years. 

Judge Jeremiah Smith in his argument in that case, page 329, says : 

"Hon. Samuel Bell, Judge and Governor, was certainly one of the 
leading members of the bar of that day. In his gubernatorial mes- 
sage to the legislature in 1821, he said, 'Our ancestors, who adopted 
in general the laws of that country, from which they originated as a 
basis of their code, omitted to introduce into practise that part of the 
system which appertains to Chancery jurisdiction.' Up to the de- 
livery of the opinion of Governor Bell's son (the late Judge Samuel D. 
Bell) in 1853, in the case of Wells v. Pierce we are not aware that any- 
body had ever advanced a different opinion from that expressed by 
Governor Bell in his message in 1821, which we have just quoted." 



44 



Another illustration of the principle of non-adoption and non-im- 
portation of the common law to this province appears in the opinion 
of the court in Concord Co. v. Robertson, 66 N. H., 19. 

' ' The doctrine that the soil under tide-water is a private emolument 
of the sovereign (subject to public rights of fishery and navigation), 
and that, without express or implied license, abutters cannot build 
wiiarves, or bathe in the sea, in front of their own land, is not intro- 
duced here by applying the dictates of justice and reason to the sit- 
uation of the American people. The public' title of the bed of large 
ponds {State v. Gilmanton, 9 N. H., 461), including a public right of 
fishery that cannot be impaired by prescription (State v. Franklin 
Falls Co., 49 N. H., 240, 250, 252-257), and the private right of 
wharving out (Clement v. Burns, 43 N. H., 609, 617-619), are not 
overthrown by such cases as Marshall v. Ulleswater S. N. Co., 3 B. & 
S. 732, L. R. 7 Q. B. 166, Bristow v. Cormican, 3 App. Cas. 641, Bloom- 
field v. Johnston, Ir. 8 C. L. 68, and other authorities cited in Stevens 
v. P. R. R. Co., 34 N. J. Law 532. If due weight is given to the 
axiom that common law grows out of the institutions and circumstances 
of the country, the conclusion is unavoidable that the rights of 
abutters and the public in American public waters are the whole 
property, and not merely what was left for the subjects of the realm 
by the ancient monopolies of the English executive and the manorial 
lords. " 

These authorities relate, of course, to individual divisions of the gen- 
eral common law in England and in the aggregate demonstrate how 
much more extensively than is commonly understood to be the case 
the different parts of that system were originally inapplicable in the 
New England colonies. 

Another authority will be quoted at some length to exhibit the rea- 
sons why the colonies enacted their own codes of statute law and laid 
the foundations for their own common law in the several local juris- 
dictions according to the necessities of the new situation and in the 
innumerable particulars different from the common laws that existed 
in England. 

Furthermore, it must be conceded that many of the modern pane- 
gyrics bestowed upon the common law of England by superficial 
writers and rhetorical judges have no endorsement at all or very 
partial approval from those jurists who are most thoroughly ac- 
quainted with the exact nature and history of that system. 



45 



In his biograhpy of Lord Mansfield, Lord Campbell says (Estes 
and Lauriat Ed., 1873, Vol. 3, p. 299) ■ 

"I now come to the principles which guided him as a judge, and 
which have made his name immortal. 

"He formed a very low, and I am afraid a very just, estimate of 
the Common Law of- England which he was to administer. This 
system was not at all badly adapted to the condition of England in 
the Norman and early Plant agenet reigns, when it sprang up, — land 
being then the only property worth considering, and the wants of 
society only requiring rules to be laid down by public authority for 
ascertaining the different rights and interests arising out of land, 
and determining how they should be enjoyed, alienated, and transmit- 
ted from one generation to another. In the reign of George II., Eng- 
land had grown into the greatest manufacturing and commercial 
country in the world, while her jurisprudence had by no means been 
expanded or developed in the same proportion. The legislature had 
literally done nothing to supply the insufficiency of feudal law to 
regulate the concerns of a trading population; and the Common Law 
judges had, generally speaking, been too unenlightened and too tim- 
orous to be of much service in improving our code by judicial de- 
cisions. Hence, when questions necessarily arose respecting the buying 
and selling of goods, — respecting the affreightment of ships, — re- 
specting marine insurances, — and respecting bills of exchange and 
promissory notes, no one knew how they were to be determined. Not 
a treatise had been published upon any of these subjects, aiid no 
cases respecting them were to be found in our books of reports, — which 
swarmed with decisions about lords and villeins, — about marshalling 
the champions upon the trial of a writ of right by battle, — and about 
the customs of manors, whereby an unchaste widow might save the 
forfeiture of her dower by riding on a black ram and in plain lan- 
guage confessing her offense. Lord Hardwicke had done much to im- 
prove and systematize Equity — but proceedings were still carried on 
in the courts of Common Law much in the same style as in the days 
of Sir Robert Tresilian and Sir William Gascoigne. Mercantile ques- 
tions were so ignorantly treated when they came into Westminister 
Hall, that they were usually settled by private arbitration among the 
merchants themselves. If an action turning upon a mercantile ques- 
tion was brought in a court of law, the judge submitted it to the jury, 
who determined it according to their own notions of what was fair, and 
no general rule was laid down which could afterwards be referred to 
for the purpose of settling similar disputes." 



46 



A critical student of the early Puritan governments in New Eng- 
land, the late Peter Oliver, in his "Puritan Commonwealth 5 ' in a 
generalization applicable to the subject under discussion (pp. 78, 79, 
80), says: 

"The fathers of New England claimed only such portions of it 
[the Common Law] as were applicable to their condition ; and, when- 
ever it conflicted with this it was violated , without hesitation. ' ' 
* * * "But, in the leading modifications it received, we can read- 
ily discover the action of two great principles, each struggling to neu- 
tralize the other. And these were the same which divided the state 
into aristocratic and republican parties. It was the republican spirit 
Avhich abolished the laws of primogeniture; the oligarchial which pre- 
served the system of entails. It was the former which swept away, at 
one blow, 'the feudal burdens'; the latter which preserved, in all its 
strictness, the relations of master and servant, and substituted slavery 
for villanage. It was the former which insisted upon the establish- 
ment of the trial by jury ; the latter which withheld from juries, with 
jealous care, the determination of the law. It was the former which 
caused the omission of the king 's name in all legal process ; the latter 
which, denying the freemen as the source of power, substituted the 
name of the magistrates. Finally, it was the former which asserted 
that the forms of all civil government are 1 the ordinance of the man ' ; 
the latter which invested these forms with the majesty of divine 
right. Hereditary honors are to the few, saith the magistrates, what 
hereditary liberty is to the many. But the freemen, actuated by a 
wise sense of danger, felt that the honor of the commonwealth would 
be more safe with hereditary liberty than its liberties with hereditary 
honors. * * * Comparing their commonwealth to the then States 
of Burgundy and Flanders, and to the Hanse Towns of Germany, 
they acknowledged, at times, a quasi dependence upon the crown of 
England, but 'not in point of government.' From the moment that 
they landed on the shores of Massachusetts Bay, they legislated for 
themselves. It is, therefore, particularly to their original statutes 
and ordinances that we should refer, to obtain a just knowledge of the 
spirit of their laws. " 

Judge Dillon in his Yale Lectures on "Our Law: A Century's 
Progress," brings clearly to view the absurdity and impossibility of 
assuming any such identity of the colonial law and the common 
law of England as the sentimental school of American law writers 
imagine existed. 



47 



He says (Yale Lectures on "The Laws and Jurisprudence of Eng- 
land and America," 1895, 353, et seq.) : 

" It is almost needless to remark that at the date of the establish- 
ment of our national existence, English law was, notwithstanding the 
modifications necessary to adapt it to our situation, substantially our 
law. The first completed edition of Blackstone was published in 1769, 
only six years before the American Revolution. Professor Hammond 
in the preface to his edition- of Blackstone tells us that 'there is 
abundant evidence of the immediate absorption of nearly twenty-five 
hundred copies of the Commentaries in the thirteen colonies before 
the Declaration of Independence. The natural result must have been 
that this work became at once the standard authority upon law in 
every American court.' We have thus, fortunately, the means of 
conveniently ascertaining the exact ^ate of the English and AmericaD 
law at the period when our existence' as a separate nation began. 

"The great divisions of the English law were the definitely fixed. 
It consisted of the common law as modified and supplemented by acts 
of Parliament; of equity law, the product of the Court of Chancery; 
of the admiralty law, crippled indeed by the jealousy and hostility 
of the common lawyers and judges; and of the criminal law, resting 
mainly upon an enormous number of statutes, passed at different times, 
during several hundreds of years. If we look with unprejudiced eye 
at the common law excluding equity, but including the amendments 
and changes which had been made therein from time to time by 
Parliament, our wonder is how the great Commentator, whose perpet- 
ual note is one of praise, could be so blind to its defects, both of sub- 
stance and form. Many of its doctrines resting upon usage and cus- 
tom had originated when the nation was in the twilight of its civiliza- 
tion, and they were not adapted to a more refined and complex state 
of society. Conservatism patiently bore the evil and resisted change. 
The common-law forms of action were inelastic and inadequate, be- 
sides which the common lawyers were idolaters of the system, and re- 
garded the innovation as a species of legal sacrilege. They had, more- 
over, much of the fondness of the schoolmen for verbal subtilities, 
puerilities, and refinements, which obscured and thwarted sound rea- 
soning, and which, being essentially sterile, could never bear any 
w\holesome fruit. 

"But, largely, the curse of the common law came from the feudal 
system, and from the obstinacy with which the doctrines of feudalism 
were adhered to, when the system, as a direct system, had ceased to 
exist. The feudal doctrine of tenure, by which all real property was 



48 



held of a superior, by which the tenancy was always to be full, by 
which alienation was restrained, by which land was bound up in fetters 
of iron and made by entail to gratify ancestral and family pride, and 
by legislation to escape its share of the public burdens, out of which 
doctrine of tenure grew uses and trusts, and equitable as distinguished 
from legal estates, and from thence a large portion of the extraordinary 
jurisdiction of the Chancellor, — the feudal doctrine of tenure pervad- 
ing every part of the common law, left, in every part, its baneful ef- 
fects. It has always seemed to me that tenure, in its manifold rami- 
fications and consequences, in time came to be the chief bane of the 
common law. Had it not been for equitable estates and rights which 
thus originated, it is not improbable that Chancery as a separate tri- 
bunal would long since have been rendered unnecessary, and ceased to 
exist by the natural enlargement of the jurisdiction and remedies of 
the common-law courts. 

' ' The land laws of Great Britain, which today press with such heavy 
weight upon the agricultural classes, grew out of the feudal system. 
That system has never died at its roots in England. John Bright not 
many years ago declared that 'ancient, stupid, and mischievous legis- 
lation embarrassed land in every step you take in dealing with it. ' In 
England and Wales, about five thousand persons hold nearly one half 
the entire acreage; in Scotland, less than one hundred persons own 
about one half, and less than two thousand about nine tenths of all the 
lands; and in Ireland, less than two thousand proprietors, many of 
whom are non-residents, hold two thirds of the island. As a result of 
primogeniture, of entailed estates and family settlements, Great Brit- 
ain is to-day a land of tenants. 

' 'We have not, indeed, in this country wholly escaped from the com- 
plicated system of estates, which characterizes the English law. We 
ought to be free from them. We shall be. Primogeniture, entails, 
family settlements on the English model, are here unknown: land is 
plenty and cheap, and the happy result is that we have a nation of 
proprietors and not of tenants. Herein consists one of the chief 
sources of individual prosperity and national strength. In many of 
the countries of the Old World the landless poor are the natural ene- 
mies of the government. Here every proprietor, however small, is the 
natural ally of government and of law. There may be some reason 
for the various forms of socialism, communism, anarchism, among the 
struggling and oppressed peoples of the Old World. They are the 
unreasoning and desperate remedies of caste, and hunger and despair. 
But here, and among us such ideas are baneful exotics, which have 



49 



taken no deep root, and attract little notice except when their wild or 
bad adherents seek to propagate them by illegal violence or mnrder. 

"Sydney Smith drew this graphic picture of the condition of the 
English laws, on the enumerated subjects, in 1802, — that is, about 
fifteen years after our government was established: 'The Catholics 
were not emancipated. The Corporation and Test Acts were unre- 
pealed. The game laws were horribly oppressive. For every ten 
pheasants which fluttered in the wood, one English peasant was rot- 
ting in jail. Steel traps and spring guns were set all over the coun- 
try ; prisoners tried for their lives could have no counsel. Lord Eldon 
and the Court of Chancery pressed heavily on mankind. Libel was 
punished by the most cruel and vindictive imprisonments. The laws 
of debt and conspiracy were little understood. Not a murmur against 
any abuse was permitted; to say a word against the suitorcide delays 
of the Court of Chancery, or the cruel punishments of the game laws, 
or any abuse which a rich man inflicted and a poor man suffered, was 
treason against the plousiocracy , and was bitterly and steadily re- 
sented.' Again he said: 'The abuses of the Court of Chancery have 
been the curse of England for centuries. For twenty-five long years 
did Lord Eldon sit in the court, surrounded by misery and sorrow, 
which he never held up a finger to alleviate. The widow and orphan 
cried to him as vainly as the town-crier cries when he offers a small 
reward for a full purse ; the bankrupt of the court became the lunatic 
of the court; estates mouldered away and mansions fell down, but 
the fees came in and all was well. But in an instant (in 1832) the 
iron mace of Brougham shivered to atoms this house of fraud and 
delay. ' If this picture is too highly colored, its essential features are 
correct ; but we are glad to know that in all these respects the English 
law has been greatly improved, mostly within the last sixty years." 

It would be possible to multiply the evidence of rejection or non- 
adoption of common law principles (either term being accepted as 
may be necessary to conform to the respective theories as to conquest 
or discovery) indefinitely in the direction in which the authorities 
quoted inevitably tend. As Mr. Walker has well said ante, p. 43), 
the only certainty is that we have something which we call the com- 
mon law scattered at random over a vast surface and what it is and 
how far it extends is hidden in the breasts of the judges and can only 
be ascertained by experiment. It may be added that the same judge 
may authenticate the common law one way on one occasion and other- 
4 



50 



wise on the same point on another occasion. The diversity of opinion 
between different judges and different courts is, of course, far more 
prevalent, if not more apparent in special instances. An examination 
of such treatises upon the common law as that of Lord Hale and of 
such compilations of the Statutes of the Realm, as the last edition of 
Eastall, and the earlier editions of Pulton, or the record Commis- 
sioner's Compilation of 1810-1828, compels the student to the convic- 
tion that it is only by the most thorough and exhaustive survey of that 
law, as it is exhibited in works belonging in the early colonial period, 
that we can even partially appreciate the vast amount of the com- 
ponents of that system that were incapable of adaptation to colonial 
conditions. In addition to all this, in ascertaining what part of the 
common law was adopted, it is necessary to subtract and make allow- 
ance for the great volume or mass of amendments, substitutions, and 
rejections made by the colonial Legislatures, by the authority of thp 
king, affirmative or fairly presumed, acting within the prerogative. 
It was doubtless in view of such considerations as these that Lord 
Mansfield declared in Hall v. Campbell (Lofft 710) : 

''It is absurd that in colonies they should carry all the laws of 
England with them; they carry only such as are applicable to their 
situation: I remember it has been determined in the council: There 
was a question whether the state of charitable uses operated on the 
island of [Nevis] Nevice: It was determined it did not: and no laws 
but such as were applicable to their condition, unless expressly 
enacted." 



Page 51, line 13, insert an additional authority, as follows: "Dorr, 
et a., v. U. S., 195 U. S. 138." 



51 



V. 

IN THE PRACTICAL APPLICATION OF THE RULES AP- 
PERTAINING RESPECTIVELY TO THE THEORIES OF AC- 
QUISITION OF TERRITORIES BY CONQUEST AND ACQUI- 
SITION BY DISCOVERY TO CONCRETE CONDITIONS, 
THERE CANNOT BE A WIDE DIFFERENCE IN VISIBLE 
RESULTS. ONE THEORY REQUIRES THE REJECTION OF 
THAT PART OF THE COMMON LAW NOT SUITED TO COLO- 
NIAL CONDITIONS AND POLICIES; THE OTHER ASSUMES 
THAT OUT OF THE LAWS OF THE PARENT COUNTRY IN 
EXISTENCE AT THE TIME OF THE OCCUPATION OF THE 
COLONIAL TERRITORY, THAT PART WHICH WAS ACCEPT- 
ABLE, WHICH WAS SUITED TO THE CONDITIONS OF THE 
PLACE AND NOT REPUGNANT TO LOCAL CIRCUMSTANCES 
WAS ADOPTED. 

As' already demonstrated, the theory of conquest and the theory of 
selection was the one that prevailed with those who represented the 
government in the northern New England colonies in the colonial 
period, and with those who spoke by authority for the courts of 
England and who declared the law of the realm in England down to 
the time of the American Revolution. 

Cooley's Blackstone (4th Ed., Andrews), p. 108; 

Chitty Law of Prerogative of the Crown (1820), p. 31; 

4 J efferson 's Works, 178 ; 

4 Works of Franklin (Sparks), 271; 

Insular Cases 182 U. S., Be Lima v. Bidwett, p. 208 ; 

Downs v. Bidiveli, p. 344. 

The departure of the American courts from the rules of the English 
courts, not in statement or recognition of the distinctions drawn in 
Calvin's case, but in their application, important illustrations of 
which appear in Johnson v. Mcintosh, 8 Wheat. 543, opinion by C. J. 
Marshall, and in Martin v. Waddell, 16 Peters 367, opinion by C. J. 
Taney, resulted from political considerations which entered into the 
controversy with the mother country in the period between the ter- 
mination of the French and Indian War in 1660 and the Declaration 



52 



of Independence. The supposed necessity of basing the contention of 
the colonies upon the extension of the common law over the territory 
on this side of the Atlantic, and which manifested itself in the declara- 
tion of the Continental Congress, 1774 (Journal of Congress, Ford's 
Ed., 1904, 69; Story on Constitution, Bigelow Ed., 5, 89, sect, 157, 
notes), was found later to have placed them in an untenable position. 
The common law carried no principle corresponding to the American 
contention that " taxation without representation is robbery." Repre- 
sentation in parliament of England at common law was a concession 
or a privilege and not a right, and at common law the rotten boroughs 
and privileged constituencies made laws for the great mass and major- 
ity of the people of the kingdom, within the four seas, who had no 
voice or part in any constituency. Franklin and Jefferson recognized 
the inexpediency and futility of the attempt to base the colonial con- 
tention upon the common law. The doctrine of an American common 
law and an American parliament in each colony, each legislating in 
its own sphere, corresponding with and having the same force and 
function within its political limits, as the laws of parliament and the 
Jaws of England had in England and Wales, became the real ground 
of the polemical contest which ensued. For these reasons, the declara- 
tion of the Congress of 1774 in relation to the common law does not 
reappear in the text of the Declaration of Independence. 

An examination and analysis of the resolutions of 1774, designed as 
a presentation of the argument in behalf of the colonies as it had de- 
veloped at that time, in no wise sustains the argument that the fathers 
Avere declaring in favor of the doctrine of the transmigration of the 
municipal law of England to these colonies. Everything in the terms 
and argument of the instrument is carefully restricted to a vindication 
of the fundamental rights of the English people, in whatever of the 
possessions of the realm of England they happen to be domiciled. 
They refer to those natural rights which, in case after case in the 
English common law and in document after document in the state 
papers, are described as "the birthright of the subject." In the same, 
connection, however, with the resolution of 1774 relating to the com- 
mon law (article 7), they declare (article 5) that they "are likewise 
entitled to all the immunities and privileges granted and confirmed 



53 



to them by royal charters, or secured by their several codes of provin- 
cial laws." 

Mr. Thorpe, in his recent work on the Constitutional History of the 
United States (1901), presents a view of the events of this period 
which is more in line with the actual theories of the Revolutionary 
period, that were entertained in the colonies, than some of the more 
partisan authorities afford in the subsequent state period. 

This author says, Vol. 1, p. 87 : 

"On the fourteenth day of October [1774], Congress acquiesced in 
the report of the other committee on the Rights of the Colonies, which 
took the now customary form of a declaration of rights, and with 
the exception of two of its articles, met with unanimous approval. 
It was essentially a restatement of the rights declared in the English 
Bill of 1689, and in the declaration of the first Congress, in 1765. It 
contained no administrative provisions, a fact which explains the 
unanimity of its approval by the members. Its purpose was to set 
forth the rights of the Americans in such a manner to persuade 
the world that the late acts of Parliament, complained of, were un- 
constitutional. It therefore subjected them to the test of political 
principles, and pronounced them 'unconstitutional and most danger- 
ous and destructive to American rights.' After emphasizing the doc- 
trine, by this time generally accepted in the country, that the rights 
of the Americans were natural, — and under this general claim were 
put the rights of petition, of representation, of jury trial and of the 
freedom of religion, — the claim of the exclusive right of the assembly 
to levy taxes was repeated from the declaration of 1765. But the 
new declaration went further, claiming that the foundation of Ameri- 
can rights was not only in nature but also in the royal charters and 
'the several codes of Provincial laws.' In 1774, the Americans had 
been engaged in self-government long enough to establish political and 
legal precedents and the early charters, though in many respects obso- 
lete as they came to be interpreted, assumed, in the popular mind, an 
importance not unlike that now attributed to a State constitution. 
If not justly comparable with the State constitutions, these charters 
and the ideas popularly read into them, served an admirable consti- 
tutional purpose for it was necessary to base political procedure in 
America upon legal precedents rather than on mere philosophical 
speculation. The doctrine of natural rights was supposed to be a 
sufficient philosophical basis, but the royal charters and the code of 
provincial laws were easily construed as legal precedents. These laws 



54 



were a record of civil administration and sufficient time had elapsed 
since the beginning of colonial legislation to give them the rank of 
contemporaneous acts of Parliament. It is not difficult to "understand 
this native estimate of early American legislation. The colonists 
claimed to possess the ancient and undoubted rights of Englishmen, 
and they were now persuading themselves that each of their thirteen 
assemblies was a Parliament, and that the thirteen Parliaments of 
Englishmen in America ranked with the Parliament of the English- 
men in Great Britain. ' ' 

Something was accomplished in the Eevolution by these colonists. 
They did vindicate the natural rights of men. They established the 
privileges and concessions which they claimed had been irrevocably 
granted them by the royal charters. They established all the immu- 
nities and all the public and private rights which they had undertaken 
to secure for themselves previously by their several codes of provincial 
laws. The achievement of American independence put these provin- 
cial laws beyond the reach of repeal by the king or the privy council. 
At this time all these things for which the struggle was inaugurated 
carried on for years and finally won, passed out of the domain of 
contested claims into that of accomplished facts. 

The trend of public opinion at this time is clearly indicated in Mr. 
Jefferson's own words which are found in his correspondence. 

"I deride," says he, "with you the ordinary doctrine, that we 
brought with us from England the common-law rights. This narrow 
notion was a -favorite in the first moment of rallying to our rights 
against Great Britain. But it was that of men who felt their rights, 
before they had thought of their explanation. The truth is, that we 
brought with us the rights of men, of expatriated men. On our arrival 
here the question would at once arise, by what law will we govern 
ourselves?- The resolution seems to have been, by that system with 
which we are familiar; to be altered by ourselves occasionally, and 
adapted to our new situation." 4 Jefferson's Correspondence, 
178. 

The course of political events in reference to this subject, as in refer- 
ence to many others that have since become involved in issues of law 
before the Supreme Court of the United States, led to the formal adop- 
tion, notably in Johnson v. Mcintosh, before cited, of a modified dec- 



55 

laration and application of the rule as to discovered territory as the 
one applicable in these colonies, not only to those of the class to which 
Virginia and Massachusetts are assignable, but to those also of the 
class in which New York would seem to be properly placed on sound 
historical ground. In view of the relations which existed between 
Jefferson and Marshall with respect to the theories of government 
entertained by them respectively, it is not surprising that the latter 
should become the exponent of a different view on this question from 
that which controlled Jefferson when, in 1776, he formulated the 
Declaration of Causes, which impelled these colonies to the separation. 
The principle of the extension of the common law in the colonies 
pro proprio vigore and eo instanti, upon discovered territory at the 
time of its settlement, is akin to that which in our day appears in 
national polemics when it is asserted that "the constitution follows 
the flag." The attitude of Chief Justice Taney towards these doc- 
trines, as discovered in Martin v. Waddell and in the Dred Scott case, 
is not inconsistent with certain important political theories which were 
conspicuous and essential in his personal faith and party alignment. 

This later American doctrine, extensively modified, admits of all 
the exceptions which the Supreme Court of New Hampshire made 
conditions to the adoption of the rule. 
State v. Rollins, 8 N. H. 561. 

After the separation and rejection of all those parts of the common 
law of England which would be excluded under the operation of the 
rules of elimination prescribed in State v. Rollins, the remainder, such 
as it was, or stating the matter in a more practical form, what the 
courts having final law jurisdiction in the province and state ascertain 
judicially to have been the law in the province period, not rejected but 
actually adopted, was what was made permanent by the act of the Rev- 
olutionary Legislature of 1777 and by article 89 (90) of the constitu- 
tion of 1784. 

In the application of' this later American doctrine both the courts 
and the text writers have found that a part of the common law of 
England which was practically immeasurable must, as that law existed 
in the colonial period, have been regarded as not adopted and not 



56 



operative here on account of ecclesiastical, political, physical and other 
reasons and conditions which have been specified. 

The reasoning on this point is clearly and adequately summarized 
in the commentary of Judge Sharswood in his edition of Blackstone, 
volume 1, star page 107, 1880: 

"Sir William Blackstone considered the British colonies in North 
America as ceded or conquered countries, and thence concluded that 
the common law in general had no allowance or authority there. But 
this was an error. The claim of England to the soil was made by her 
in virtue of discovery, not conquest or cession. The aborigines were 
considered as but mere occupants, not sovereign proprietors; and the 
argument for the justice of taking possession and driving out the na- 
tives was rested upon the ground that a few wandering hordes of 
savages had no right to the exclusive possession and enjoyment of the 
vast and fertile regions which were opened for the improvement and 
progress of civilized man by the discovery of the New World. 'On 
the discovery of this immense continent,' said Chief Justice Marshall 
in Johnson vs. Mcintosh, 8 Wheaton, 582, 'the great nations of Europe 
were eager to appropriate to themselves so much of it as they could 
respectively acquire. Its vast extent offered an ample field to the 
ambition and enterprise of all; and the character and religion of its 
inhabitants afforded an apology for considering them as a people over 
whom the superior genius of Europe might claim an ascendency. The 
potentates of the Old World found no difficulty in convincing them- 
selves that they made ample compensation to the inhabitants of the 
New by bestowing on them civilization and Christianity in exchange 
for unlimited independence. But, as they were all in pursuit of 
nearly the same object, it was necessary, in order to avoid conflicting 
settlements, and consequent war with each other, to establish a prin- 
ciple which all should acknowledge as the law by which the right of 
acquisition, which they all asserted, should be regulated as between 
themselves. This principle was, that discovery gave title to the gov- 
ernment by whose subjects or by whose authority it was made, against 
all other European governments, which title might be consummated 
by possession. 

' ' The exclusion of all other Europeans necessarily gave to the nation 
making the discovery the sole right of acquiring the soil from the na- 
tives, and establishing settlements upon it. It was a right with which 
no Europeans could interfere. It was a right which all asserted for 
themselves, and to the assertion of which by others, all assented. 



57 



" Those relations which were to exist between the discoverer and 
the natives were to be regulated by themselves. The rights thus ac- 
quired being exclusive, no other power could interpose between them. 

"In the establishment of these relations, the rights of the original 
inhabitants were in no instance entirely disregarded, but were neces- 
sarily, to a considerable extent, impaired. They were admitted to be 
the rightful occupants of the soil, with a legal as well as just claim to 
retain possession of it, and to use it according to their own discretion ; 
but their rights to complete sovereignty as independent nations were 
necessarily diminished, and their power to dispose of the soil at their 
own will to whomsoever they pleased, was denied by the original fun- 
damental principle, that discovery gave exclusive title to those who 
made it. " (See, also, opinion of Taney, chief justice in Martin v. Wad- 
dell, 16 Peters.) 

"It follows, then," says Judge Sharswood, "that the true principle 
as regards the British colonies in this country, which subsequently be- 
came the United States, is that which the learned commentator has 
recognized to be the rule of new settlements : ' That if an uninhabited 
country be discovered and planted by English subjects, all the English 
laws then in being, which are the birthright of every subject,* are im- 
mediately there in force. But this must be understood with very 
many and very great restrictions. Such colonists carry with them 
only so much of the English law as is applicable to their own situation 
and the condition of an infant colony; such, for instance, as the gen- 
eral rules of inheritance, and of protection from personal injuries. 
The artificial refinements and distinctions incident to the property of 
a great and commercial people, the laws of police and revenue, (such 
especially as are enforced by penalties,) the mode of maintenance for 
the established clergy, the jurisdiction of spiritual courts, and a multi- 
tude of other provisions, are neither necessary nor convenient for them, 
and therefore are not in force. ' 

£ ' This expresses accurately and fully the well-settled and repeatedly 
recognized doctrine of the American courts upon the subject of the 
extension of the English common law and statutes to this country. 
Our ancestors brought with them only such parts of the laws of 
England as were adapted to their new conditions, and, we may add as 
quite important, such only as were conformable to their principles, 
The original settlers of this country belonged to a stock of men whose 
history exhibited in a remarkable manner the ascendency of moral and 

*This is an illustration of an employment of a general expression without due reference 
to the distinctions before stated, ante, p. 8. — A. S. B. 



58 



religious principles, and who were deeply imbued with notions of the 
right of men to live under governments of their own choice. All the 
great safeguards of political liberty which were consecrated in Eng- 
land about that period or subsequently, by the Bill of Rights and 
Act of Settlement, were received and held by them as fundamental to 
all free government. Not only so, but their ideas on religious free- 
dom, on the administration of criminal law, and on the process and 
pleading in courts, were simple, just and humane. There never was 
an order of provincial nobility, nor with one or two unimportant ex- 
ceptions, an established clergy, in any of the colonies. Thus, not only 
in regard to the common law, but as to the statutes in force at the time 
of their settlement, some parts were adopted, some entirely rejected, 
and some adopted with important modifications. Some British stat- 
utes passed subsequent to that date were in some cases silently adopted, 
without express legislation: the lawyers of the old colonies, having 
either been educated in England, or deriving their ideas from English 
books, adopted and introduced into general practice and understand- 
ing such improvements as they found to be convenient." 1 Shars- 
wood's Blackstone, Ed. of 1880, p. 107, note 11. 

VI. 

A COMPARISON OF BLACKSTONE 'S EXPOSITION OF THE 
LAW OF NATIONS AS APPLIED TO THE AMERICAN COLO- 
NIES, AVITH THE HISTORY OF THE COLONIAL LAW OF 
MASSACHUSETTS BAY AND NEW HAMPSHIRE AS AC- 
TUALLY ADOPTED, DEVELOPED AND ADMINISTERED. 

It does not appear that any practical purpose would be subserved 
by a review of the events related to the government and laws imme- 
diately affecting the English colonies in New England in any consid- 
erable period prior to the establishment of the Council of Plymouth 
in the County of Devon by the king's charter of November 3, 1620, 
and the planting of the colony of New Plymouth in New England the 
same year. 

Two important facts must be observed at he outset of the considera- 
tion of this branch of the narrative. 

First, there is no record of any act of parliament providing that the 
general system of the statute law of England or the body of the com- 
mon Jaw of England should be regarded or treated as the law imme- 



59 



diately governing either or all of the New England colonies. See p. 
.71, post. 

It was the custom in legislation by parliament directed specially to 
the American colonies to specify the purpose of the act if it related 
to one or more of the colonies, or, to repeat again the language of 
Blackstone, they were subject to the control of the parliament, though 
not bound by any acts of parliament unless particularly named. (Hall 
Y.Campbell, Cowp. 204; Act of 6 Geo. Ill, Stats, at Large, Vol. 12, p. 
460, Appendix F.) 

Second, there is abundance of evidence that the king, through the 
entire period of the existence of the New England colonies, exercised 
the prerogative of legislation to the extent of issuing patents or char- 
ters, from time to time, designed to carry out this purpose, without 
any interference on the part of parliament with the exercise of these 
powers, except, occasionally, to employ its own reserved powers of leg- 
islation on particular subjects, the special application thereof to the 
colonies being always formally stated in the act. 

King James I, as before stated, constituted a council designated as 
the "Council established at Plymouth in the County of Devon for the 
ruling, planting and governing of New England in America. ' ' 

This council, commission or corporation was accorded very ample 
powers, including that of appointing governors, officers and ministers 
as executives for the colonies and plantations and that of making, or- 
daining and establishing forms of government mid magistracy, laws, di- 
rections and instructions, fit and necessary for the government of the 
colonies. The grant of the law-making power in this charter was ex- 
plicit and unequivocal. In terms it was as follows: "and we do fur- 
ther by these presents for us & our heirs and successors Grant unto the 
Councel & their successors that it shall & may be Lawfull to & for the 
said Councel & their successors for the time being in ther Discressions 
from time to time * * * to make or dain & Establish all manner of 
orders Laws Directions Instructions formes & Cerimonies of Governmt 
& Magestrycy fit & Necessary for & Concerning the Governmt of the 
said Collony & Plantation so always that the same be not Contrary to 
the Laws & Statutes of this our realm of England & the same at all 
times hearafter to abrogate revoke or Change not only within the pre- 



60 



sinct of said Colony but also upon the seas in going & Coming to & 
from ye said Colony as they in their good discressions shall think to be 
fitest for the good of the adventurers & Inhabitants there. " 29 N. H. 
State Papers, pp. 8, 9. The council of Plymouth in the County of 
Devon organized and accepted the commission of the king and entered 
upon the undertaking committed to it. 

Under the administration of this corporation, settlements were ef- 
fected in the territory now constituting the State of New Hampshire, 
while settlements and the establishment of colonial governments with 
powers of legislation, so far as those powers could be delegated by the 
corporation, were accomplished in the territories and for the colonies 
of Massachusetts Bay and New Plymouth. • 

VII. 

THE INHABITANTS OF THE PEE SENT TERRITORY OF 
NEW HAMPSHIRE HAD NO COLONIAL OR FEDERATED 
GOVERNMENT FROM 1623 TO 1641. 

New Hampshire, in the 18 years of the settlement before it became 
a party to the union with Massachusetts Bay, was not numerously pop- 
ulated. 1 Laws, 1679-1702, pp. lix, xcviii. It is estimated that there 
were not more than one thousand persons constituting the population 
in 1641. The reasonableness, as well as the necessity of a union with 
Massachusetts Bay, is perfectly manifest. M. A. Doyle, Comments, 3 
English Colonies in America, 211, 212 and 329-332, quoted 1 Laws of 
N. H., 1679-1702, Appendix, pp. 780, 783. 

From these four towns, however, there was a later outgrowth of 
many municipalities. It may be said with truth that there were only 
five in the first colonial period, including the Isles of Shoals, but their 
offshoots consisted of 28 other towns on the same territory. Here was 
the civic influence and motive which, in cooperation with the extension 
of population, municipal organization and government from Massa- 
chusetts all over the settled parts in the central and western regions, 
dominated the province to the time of the Revolution. Governmental 
forces acquired their direction and momentum from the union of 
1641-1679, and they were everywhere reinforced in the succeeding 



61 



century by the overflow of emigration from this part of the province 
and from Massachusetts upon all the other sections. 

The inhabited region between the present southwestern line of 
Maine and the northeast line of Massachusetts in the first period of 
its history, 1623-1641, had reached no other stage of local government 
than that • which had manifested itself in four towns individually 
developed independently of each other and organized in most respects 
after the normal New England pattern. The evidence of a federal 
union of two or more of these towns prior to 1641, is not sufficiently 
substantial and definite to be the basis of a theory. George Burdett's 
letter to Archbishop Laud, 1638, Colonial State Papers, Vol. 9, No. 
129; 17 N. H. State Papers, p. 497; A. H. Quint's Comments Hist. 
Memoranda of Ancient Dover, Scales' Ed., 17, 18. 

Hampton, a Massachusetts settlement, supposed to have been located 
on Massachusetts territory, had beginning in 1639. Exeter was a 
small colony of disaffected Puritans who, in 1638, came into occupancy 
of lands on the Swampscott River purchased from the Indians. A 
group of fishing, trading, lumbering and farming hamlets at the lower 
Piscataqua constituted the town of Portsmouth and a like group up 
the river constituted Dover. The king had provided these people no 
colonial or province government. They could not or had not brought 
about any general government by a union of the towns. They occu- 
pied an exposed frontier. They were politically in that inchoate state 
which is described by Yattel as "scattered settlements." They were 
m a situation in which they would have the right by the law of na- 
tions to provide themselves with a state government of some sort if 
none were ordered for them by their sovereign. They rightfully 
elected to combine themselves as a body politic with the contiguous 
government and colony of Massachusetts Bay, rather than erect them- 
selves into a separate government. Indeed, the rivalries and jeal- 
ousies that sometimes exist between such settlements might have ren- 
dered a voluntary union among themselves impossible. 

Yattel says : 

"If a number of free families, scattered over an independent coun- 
try, come to unite for the purpose of forming a nation or state, they 
altogether acquire the sovereignty over the whole country they inhabit:: 



62 



for, they were previously in possession of the domain — a porportional 
share of it belonging to each individual family: and since they are 
willing to. form together a political society, and to establish a public 
authority, which every member of the society shall be bound to obey, * 
it is evidently their intention to attribute to that public authority the 
right of command over the whole country." Law of Nations, section 
206 ; Papers of Submission, June 2, 1641, June 14, 1641, and the Act 
of Union, October 7, 1641, printed in 25 N. H. State Papers, 705, 706 ; 
Laws of N. H., 1679-1702, xxx. 

The ordinances of 1641, 1647, were subsequent to this union. The 
Body of Liberties were adopted December 10, 1641, L e., it was voted 
on that date that they should stand in force for three years. Whit- 
more 's Notes above cited, page 9. 

From the time of the consummation of this union on the 7th of 
October, 1641, the people of the territory which had been known as 
New Hampshire were represented in the General Court of the United 
Colonies, and in many sessions of the House of Deputies Mr. Richard 
Waldron of Dover was the speaker. Farmer's Belknap, 54, 55. 

This union was consummated without objection on the part of the 
home government and doubtless would have continued as a finality 
but for the revival of an ancient land patent under which the heirs of 
John Mason claimed title to a large part of the lands included in the 
province. In its inception the union was de jure. In the entire period 
of its continuance it was de jure. The king's declaration in 1679 
that the union was illegal was not a judicial utterance. It could 
not affect the legality of administrative, judicial, and legislative 
acts previously done in the government of the union. If de facto, 
its governmental acts were valid to all intents and purposes, subject 
to the right of the king under the superior right of crown government 
by his prerogative to repeal such unions, to supercede governments 
voluntarily assumed, and to make territorial divisions of them when- 
ever he saw fit, as Blackstone employs the term, "to remodel them. V 
This right, however, upon the strict letter of' the rule in Calvin's case 
could exist only in territory which the king governed as a crown 
possession or dominion and which was regarded in law as conquered 
territory Otherwise it would be subject exclusively to government by 



63 



the English parliament or by a local assembly, and the king's powers 
in such regions would be no different by the law of nations than they 
would be in the County of Cornwall in the home kingdom in the same 
period. Fortescue's Calendar, Sect. 106; Laws of N. H., 1679-1702, 
Appendix 772-787. 

The union continued thirty-eight years and in that time the people 
of the United Colonies became homogeneous in respect to their ecclesi- 
astical affairs, their political tenets and their determination to maintain 
their local self-government and their public rights in waters and the 
shores of the sea and their private holdings of land. 

The territorial claims " of Massachusetts Bay, to the northward of 
their present line, were not finally determined until 1740. Among 
the authorities relating to that claim are the Boundary Line Papers, 
19 X, H. State Papers, passim ; The grants of Townships North of the 
Present Boundary, 24 N. H. State Papers, pp. vi, 1-368 ; Report of 
the Endicott Rock Commission, 1893 ; Massachusetts Colonial Records 
Relating to the First Union of New Hampshire and Massachusetts 
Bay, Vol. 1, pp. 324, 332, 342, 343; Id., Introduction to Laws of New 
Hampshire, 1679-1702, 30, 31, 32; 66 N. H. 26; 17 N. H. State 
Papers, 531. 

King Charles II describes, in the Cutt Commission of 1679, the 
extent of the jurisdiction previously exercised over New Hampshire, 
as follows : 

"Our colony of the Massachusetts, alias Massachusetts Bay in New 
England in America, have taken upon themselves to exercise a govern- 
ment and jurisdiction over the inhabitants and planters in the towns 
of Portsmouth, Hampton, Dover, Exeter, and all other the towns and 
lands in the province of New Hampshire* lying and extending from 
three miles northward of Merrimack river or any part thereof unto 
the province of Maine." 1 Laws of N. H., 1679-1702, p. 2. 

The first constitution and the first state government of the people of 
Connecticut was adopted twenty-three years before a royal charter- 
was issued to them. That first government was created by a political 
union and organization of the people of three frontier towns, — "scat- 
tered settlements." The law of nations accorded them the right. It 

* The italics are not in the original text. 



64 



gave the people of New Hampshire (in the absence of the exercise of 
the superior powers relating to the same subject belonging to the 
king or parliament) the same right to be exercised by joining them- 
selves for governmental purposes to a contiguous English colony or 
by the erection for themselves of a separate political establishment, as 
might seem to them most appropriate and advantageous. Hist, of 
Connecticut, Commonwealth Series, by Alex. Johnston, 63; Id., John 
Fiske, The Beginnings of New England ; see, also, elaborate and learned 
argument by Lord Mansfield that the king's legislative authority by 
his prerogative alone applies to a ceded, conquered country, while the 
power of government over the territory found vacant or acquired by 
discovery is parliamentary. Hall v. Campbell, Cowp. 204; Blackstone, 
Lewis Ed., 1898, star page 107, note (20). 

The council or corporation of Plymouth, in the County of Devon, 
collapsed in 1635. Under the patents emanating from that organiza- 
tion very little legislation was attempted (except in the Colony of New 
Plymouth), and that little was limited to the general courts of Massa- 
chusetts Bay and New Plymouth. 

.Meanwhile the king had granted a charter government to the Col- 
ony of Massachusetts Bay in 1629. Legislative powers, thus conferred 
upon the colony and company of Massachusetts Bay, were exercised by 
the colonial government until the abrogation of this first charter by 
the Court of Chancery in 1684. A very complete system of laws was 
enacted by the colonial general court in this first period. These were 
the laws of the people occupying the territory, both of Massachusetts 
Bay and New Hampshire. They were never abrogated or repealed by 
the king or parliament. 

Previous to 1679 no other colonial government had been provided 
for New Hampshire. 1 Laws of N. H., 1679-1702, Introduction, xx; 
Combinations for Local Government, Id., Appendix, 744. 

In the period of 1641, 1642 and 1643, the towns, one after another, 
became an organic part of Massachusetts Bay. The entire body poli- 
tic, as well as the' territory, of New Hampshire was incorporated in 
that of Massachusetts Bay in the period between 1641 and 1643, and 
this status continued until 1679. The people of New Hampshire par- 
ticipated in the law-making function in the Bay government, and botk 



65 



were subject to the same laws. This was the actual political status of 
the people of New Hampshire and Massachusetts Bay from 1641 to 
1679. 

The eleven successive commissions (not including the period of the 
Dominion of New England), subsequently providing the form and 
machinery of a separate province government for New Hampshire, be- 
ginning with that of John Cutt in 1679 and ending with that of John 
Wentworth, were in the exclusive exercise of the king's prerogative in 
this regard. (Manual of the New Hampshire General Court, 1879, pp. 
1-17 ; 1 Laws of N. H., 1679-1702, pp. lxxxiHxxxvii. ) 

In this period, from 1620 to 1775, the king legislated for the col- 
onies to the extent of providing all the organic law, from time to time, 
in the form and terms which appear in the colonial charters to them 
and the commissions and instructions granting powers and denning 
the scope and limitation of those powers in the province government 
accorded to New Hampshire. He also introduced with the second 
period, 1679-1775, the rule of revision of colonial legislation in the 
privy council. 

The charters for Connecticut, 1662, and Rhode Island, 1663, were 
royal charters, carrying full power of local legislation and administra- 
tion, with authority to establish courts of justice. Poore's Charters 
and Constitutions, Vol. 1, p. 255; Vol. 2, p. 1598. 

The dominion of New England, 1686-1689, accompanying the sus- 
pension of the previously existing colonial and province government, 
was a creation of the king. 

The king, however, never legislated for one of the New England 
colonies, provinces or plantations by the enactment of particular laws 
for local and specific purposes or objects, in the entire colonial period. 

It was held distinctly, in Hall v. Campbell, that, having provided 
the constitution for the colony or province, he had exhausted his pre- 
rogative rights in that direction and laws could, thereafter, be made 
only by the local assembly or the English parliament. 

The evidence of the contemporary conduct of all the affairs related 
to government of these colonies* tends manifestly to the conclusion that 
the established colonial government was an exercise of the king's 
5 



66 



prerogative and that parliament intervened by legislation only in 
special and exceptional instances. 

If, therefore, these colonies were distinct, though dependent, domin- 
ions, "no part of the mother-country, " -in respect to the extension 
over them of the laws enacted by and for the mother country, proprio 
vigor e, wherein the common law of England (except the natural rights 
of the subject) had no allowance, and where acts of parliament were 
not operative and had no effect unless such purpose was specially de- 
clared in the act and the colony particularly named, then it would 
seem to follow that in the ascertainment of colonial law at any given 
period recourse could only be had to the organic law specially pro- 
vided for the colony or province by the king, to the statutes made 
by the General Courts and General Assemblies of the Colonies, re- 
quired by their local necessities, and suited to their own situations 
and emergencies, and to the common law in each colony not imposed 
upon them but gradually developing from their own usages, their own 
local conditions and their adoption and non-adoption of the provisions 
of the English common law, the Mosaic law, and other systems of law. 
In this view of the governmental relations of the crown with the col- 
onies and of the internal polity of the colonies, it might well be as- 
sumed that every statute of a permanent character, once duly enacted 
in a colonial Legislature, and every principle voluntarily or passively 
incorporated in the local common law became a part of the body of the 
law of the colony, and so continued until repealed by the king, by the 
act of a subsequent colonial or state Legislature, or by a recognized 
change in the common law, so permanent and unmistakable as to com- 
mand the formal and continuous (not exceptional and spasmodic) 
recognition and sanction of the Supreme Court of the state. 

"Lord Chief -Justice Wilmot has said that 'the statue law is the 
will of the legislature in writing ; the common law is nothing else but 
statutes worn out by time. All our law began by consent of the legis- 
lature, and whether it is now law by usage or writing is the same 
thing. (2 Wils. 348). And statute law and common law, both orig- 
inally flowed from the same fountain.' {Id. 350.) And to the same 
effect Lord Hale declares 'that many of those things that we now take 
for common law, were undoubtedly acts of parliament, though now not 



67 



to be found of record.' (Hist. Com. Law, 66.) Though this is the 
probable origin of the greatest part of the common law, yet much of 
it certainly has been introduced by usage, even of modern date, which 
general convenience has adopted. As in the civil law, sine script e jus 
venit, quod usus approbavit, nam dkiturni mores consensu utentium 
comprobati legen imitantur. (Inst. 1, 2, 9.)" Sharswood's Black- 
stone, Ed. 1880, Vol. 1, p. 73, note 14 ; further as to statutes worn out 
by time see Smith's N. H. Eeports, 337, 529, note 2. 

Mr. Dwarris, in his work on Statutes and Constitutions, Potter's 
Edition, 1871, pp. 41, 42, after commenting upon the origin of the com- 
mon law and referring to the fact that changes have been wrought in 
this common law, either by legislation or by finding it inapplicable to 
our changed form of government, the substituted changes being more 
suited to the condition of a free people, says: 

' ' Those venerated sages of the English law whose writings we regard 
as standard authority, * * * and also distinguished jurists in- 
form us, that much of the common law which we so borrowed and 
adopted, is nothing else but ancient statutes and ordinances worn out 
by time ; that all our law began by the consent of the legislature ; that 
many of those things that we take for the common law, were undoubt- 
edly acts of parliament, though not now to be found of record. ' ' 

"We may say," remarks Freeman, "that in the time of Edward I., 
A. D. 1272-1307, the English Constitution definitely put on the same 
essential form which it has kept ever since * * * From that time 
English constitutional history is not merely an inquiry, however in- 
teresting and instructive, into something which has passed away. It 
is an inquiry into something that still lives ; it is an inquiry into laws 
which, whenever they have not been formally repealed, are in full force 
at this day. Up to the reign of Edward I. English history is strictly 
the domain of antiquaries. From the reign of Edward I. it becomes 
the domain of lawyers." Freeman's "Growth of the English Con- 
stitution," chap. ii. 



68 



VIII. 

THE POWERS GRANTED TO THE COMPANY AND COLONY 
OF MASSACHUSETTS BAY BY THE CHARTER OF 1629, AND 
THE VALIDITY OF THE EXECUTION OF THESE POWERS 
IN THE CONSTITUTION OF THE POLITICAL GOVERNMENT 
AND IN THE ENACTMENT OF NECESSARY LAWS FOR THE 
COLONY. 

The royal charter of 1629, superseding or supplementing the patent 
from the Council of Plymouth, contained a grant or delegation of the 
right to constitute and exercise a local government and the right to 
exercise the law-making power to the company and colony of Massa- 
chusetts Bay in the following terms, viz. : 

"In all and every, or any of which saide greate and generall Courts 
soe assembled, Wee doe for us, and our Heires and Successors, give and 
grante to the said Governor and Company, and their Successors, That 
the Governor, or in his absence, the Deputie Governor of the saide 
Company for the tyme being, and such of the Assistants and Freemen 
of the saide Company as shalbe present, or the greater nomber of them 
so assembled, whereof the Governor or Deputie Governor and six of the 
Assistants at the least to be seaven, shall have full Power and author- 
itie to choose, nominate, and appointe, such and soe many others as 
they shall thinke fitt, and. that shall be willing to accept the same, to 
be free of the said Company and Body, and then into the same to ad- 
mitt; and to elect and constitute such Officers as they shall thinke 
fitt and requisite, for the ordering, managing, and dispatching of the 
Affaires of the saide Governor and Company, and their Successors; 
And to make Lawes and Ordinances for the Good and Welfare of the 
saide Company, and for the Government and ordering of the saide 
Landes and Plantation, and the People inhabiting and to inhabite the 
same, as to them from tyme shall be thought meete, soe as such Lawes 
and Ordinances be not contrarie or repugnant to the Lawes and Statuts 
of this our Realme of England. ' ' 

It may be remarked in this connection that the legal foundation for 
the powers of government exercised by the colony of Massachusetts 
Bay under the first charter haA r e been the subject of exhaustive in- 
vestigation, both without and within the courts, and in England as 
well as in this country. The essay of Mr. Charles Deane, constituting 



69 



chapter X of Vol. 1, Memorial History of Boston, 1880, under the 
title of The Charter of King Charles the First, however, affords a 
judicial and unbiased presentation of the subject and sufficiently 
elaborate for purposes of reference in this discussion. 

Chief Justice Shaw had the question of the validity of the charter 
rights, exercised by the Bay Colony, under consideration in 1851, but 
a few years prior to the time of the publication of Mr. Oliver's Puri- 
tan Comm. o n wealth . 

It will serve the purpose of the present argument sufficiently to 
quote the conclusions of this distinguished authority. 

"This charter," says Chief Justice Shaw, "was not merely a grant 
of property within the realm of England, but it contained provisions 
for the establishment of a separate dependent government under the 
allegiance of the king; and the government thereby constituted was 
invested with all the requisite civil and political powers to enable it 
to establish and govern the colony, and to make laws for that purpose, 
not repugnant to the laws of England. It was so understood and 
practised upon, and a species of representative government was soon 
ingrafted on it in practice, and so it continued, and the colony grew 
up and flourished under it, until the charter was formally revoked 
and annulled, by a decree of the English court of chancery, in 1685 
[1684]. This decree we may have occasion to allude to again here- 
after. At present it is not necessary to trace the powers of the 
colonial government further. They were then regarded and have ever 
since been acknowledged to be ample and sufficient to grant and es- 
tablish titles to land and to all territorial rights and privileges, and 
to govern and control all the internal concerns of the territory over 
which it was established. To the grants and acts of that government 
all titles to real property in Massachusetts, with their incidents and 
qualifications, are to be traced as their source." 

Commonwealth v. Alger, 7 Cush. 66. 

Blackstone Comm. *108. 

In Hall v. Ctimpbell, Cowp. 213, it appeared that the king had, by 
letters patent or commission, created a legislative assembly with au- 
thority to enact laws for the island of Grenada. 

It was held that thereafter all legislation for this island must be 
by the assembly of the island or by an act of the parliament of Great 
Britain. 



70 



The king had, by granting the assembly, foreclosed his prerogative 
of making laws for the place. 

"We think," says Lord Mansfield, "that by the two proclamations 
and the commission to Governor Melville, the King had immediately 
and irremediably granted to all who should become inhabitants or who 
had, or should acquire property on the island of Grenada, or more 
generally to all whom it might concern, that the subordinate legisla- 
tion over the island should be exercised by an assembly with the con- 
sent of the governor and council, in like manner as the other islands 
belonging to the King. ' ' 

"The constitution of every province, immediately under the King," 
says the same distinguished judge, in the same case, p. 212, "has 
arisen in the same manner; not from grants but from commissions to 
call assemblies." 

Thus it is very evident that the colonies passed through two dis- 
tinct stages of government, the first being a government by crown 
laws, decrees and orders, without the intervention of parliament and 
without the transmigration of the municipal law of the kingdom of 
England, and the second being the stage or period of government by 
charter and commission, delegating irrevocable powers of local 
legislation by colonial assemblies. 

It is by no means the intention in this argument to be dogmatic. 
Therefore the abstract of the English Colonial act of 1865, which ap- 
pears in Jacob Fisher's Digest, Vol. 2, p. 1842, title "Colonies," is 
quoted at length. 

By section 2, ' ' any colonial law which is or shall be in any respect 
repugnant to the provisions of any act of parliament extending to the 
colony to which such law may relate, or repugnant to any order or 
regulation made under authority of such act of parliament, or having 
in the colony the force and effect of such act, shall be read subject 
to such act, order or regulation, and shall, to the extent of such re- 
pugnancy, but not otherwise, be and remain absolutely void and in- 
operative. ' ' 

By section 3, "no colonial law shall be, or be deemed to have been 
void or inoperative on the ground of repugnancy to the law of Eng- 
land, unless the same shall be repugnant to the provisions of some such 
act of parliament, order, or regulation as aforesaid." 

By section 4, "no colonial law, passed with the concurrence or as- 



71 



sented to by the governor of any colony, or to be hereafter (29th June, 
1865) so passed or assented to, shall be, or be deemed to have been, 
void or inoperative by reason only of any instructions with reference 
to such law or the subject thereof which may have been given to such 
governor by or on behalf 'of her majesty, by any instrument other than 
the letters-patent or instrument authorizing such governor to concur 
in passing or to assent to laws for the peace, order and good govern- 
ment of such colony, even though such instructions may be referred 
to in such letters-patent or last mentioned instrument." 

By section 5, "every colonial legislature shall have, and be deemed 
at all times to have had, full power within its jurisdiction to estab- 
lish courts of judicature, and to abolish and reconstitute the same, and 
to alter the constitution thereof, and to make provision for the admin- 
istration of justice therein; and every representative legislature shall, 
in respect to the colony under its jurisdiction, have, and be deemed 
at all times to have had, full power to make laws respecting the Con- 
stitution, powers, and procedure of such legislature; provided, that 
such laws shall have been passed in such manner and form as may 
from time to time be required by any act of parliament, letters-patent, 
order in council, or colonial law for the time being in force in the said 
colony. ' ' 

By section 2, "the word 'legislature' includes any authority compe- 
tent to make laws for any of her Majesty's possessions abroad, except 
the Parliament of the United Kingdom and her Majesty in Council." 

• The evidence which this legislation discloses of the view of the sub- 
ject which has been adopted in England and which is based upon the 
vast colonial experience of that country, is not offered as controlling 
the disposition of the questions raised in the case here under consid- 
eration. It does, however, present sharply the point that the question 
of repugnancy of definite and well-ascertained province common law, 
<as well as statute law, of a remote colonial period with a nebulous, 
unascertained, variable and unadaptable contemporary common law 
of the mother country, must in the nature of things be resolved in all 
cases in favor of the colonial law, unless a positive disaffirmance of it 
by the crown can be shown by positive record evidence. 

It may be remarked that the act of 7 and 8 William 3 (1696) chap- 
ter 22, section 9, cited on star page 108 of Blackstone's introduction 
to his commentaries, is not to the effect in all particulars that is ac- 
corded to it by the text. The language employed by Mr. Blackstone, 



72 



or which in some way crept into his text, is that "it is particularly 
declared by statute 7 and 8 W III, c. 22, that all laws, bye-laws, usages 
and customs, which shall be in practice in any of the plantations, re- 
pugnant to any law, made or to be made in this kingdom relative to 
said plantations, shall be utterly void and of non effect." This act 
was entitled, ' ' An act for preventing frauds, and regulating abuses in 
the plantation trade." The preamble makes it very clear that it was 
intended solely as a re-enforcement of the navigation acts. These 
particular acts are enumerated in those sections which precede section 
9. The marginal title to section 8 of the act is as follows : 

"No goods to be shipped though duties paid in the plantations, until 
security be given as required by 12 Car. 2 chapter 18 and 22 and 23 
Car. 2 chapter 26, on forfeiture of ship and goods." 

Previous sections refer to others of the navigation acts. 
Then follows section 9, with a title as follows : 

"Laws, bye-laws, etc. of plantations, repugnant to this act, to be 
void." 

The text of the section is as follows : 

' ' And it is further enacted and declared by the authority aforesaid, 
that all laws, bye-laws, usages or customs, at this time, or which here- 
after shall be in practice, or endeavored or pretended to be in force 
or practice, in any of the said plantations, which are in any wise repug- 
nant to the before mentioned laws [the navigation acts], or any of 
them, so far as they do relate to the said plantations, or any of them, 
or which are any wise repugnant to this present act, or to any other 
law hereafter to be made in this kingdom, so far as such law shall re- 
late to and mention the said plantations, are illegal, null and void, tc 
all intents and purposes whatsoever." 

The terms of this section read in connection with the other parts, of 
the chapter indicate conclusively that the language, making void the 
acts of the plantations or colonists, "which are in any wise repugnant 
to the before mentioned laws [viz., the navigation acts] , or any of 
them," etc., are to be treated as illegal, null and void, and relates only 
to the navigation acts and other acts of parliament afterwards to be 
made, which by their terms are made applicable to the colonies, the 
colonies being specially named 



73 



The British Parliament has, by 28 and 29 Vict., c. 63, removed sev- 
eral mooted questions relative to the powers of colonial Legislatures 
and the construction of colonial statutes from doubt. The act makes it 
clear that its provisions are to be regarded as retrospective and that 
"repugnance" is limited to conflict in a few carefully restricted in- 
stances with acts of parliament and that "repugnance" is not to be 
related to colonial amendments of the common law of England. 

IX. 

THE ACTS OF THE GENERAL COURT OF MASSACHU- 
SETTS BAY AND NEW HAMPSHIRE UNDER THE CHARTER 
OF 1629 AND THE UNION OF 1641-1647 WAS THE RESULT OF 
A VALID, EXERCISED LEGISLATIVE POWER, THE GOV- 
ERNMENT BEING COMPETENT TO THIS PURPOSE, DE 
FACTO, IF NOT DE JURE. 

In the first ten years of the existence of Massachusetts Bay Colony 
it encountered hostility and intrigue in a varity of forms in the home 
government. Archbishop Laud's attitude towards it temporarily put 
the enterprise in serious jeopardy. Quo Warranto proceedings, prose- 
cuted at his instance, resulted, in 1635, in a decree purporting to annul 
the charter. All this was prior to the New Hampshire union. The 
decree, however, was not effectual and was subsequently, in 1678, de- 
clared invalid by the crown attorneys. (The Charter of King Charles 
the First, by Charles Deane, 1 Memorial History of Boston, 343.) 
The Quo Warranto proceedings were prior to the extensive exercise of 
legislative powers and the declaration of colonial rights and exposition 
of colonial usage, that took form in the Body of Liberties in 1641. 
Indeed, the allegations of the writ relate to the due exercise of powers 
granted in the charter itself, rather than to an abuse of powers, and 
probably were intended to be so regarded. The purpose evidently was 
to deny the legality of the charter itself; to strike a blow at its ex- 
istence as being void ab initio; denying the defendant's claim to title 
to land and their claims to be a corporation. Deane, Id., 342 ; Text of 
Writ, 2 Mass. Hist. Soc. Coll., viii, 97 ; The Information and Result of 
the Process, Hutchinson, Collection of Original Papers, 101-104. 



74 



The colonists refused to surrender the charter and the political af- 
fairs of Charles I soon were in such a state at home that the Bay 
Colony was enabled to maintain its corporation and government, and 
to pursue its course of normal development. 

"For thirty years," says Mr. Deane (Id., 349), "the freemen of 
Massachusetts managed their affairs with very little interruption from 
the mother country. There were times of anxiety and there were oc- 
casions of annoyance, as we have already seen, but during this period 
they were substantially independent. ' ' 

This absence of evidence of any disapproval of the form of gov- 
ernment established in Massachusetts Bay by Charles I, in the last 
years of his reign, is significant on his part of tacit approval of, or, at 
least, of acquiescence in, the construction that the colonists had put 
upon his charter. In the period between 1649 and 1660, the time of 
the commonwealth, there was no indication of any dissatisfaction on 
the part of the home government with the government and laws of the 
colony. After the restoration influences, of which Robert Tufton 
Mason was the exponent in respect to New Hampshire, and Edward 
Randolph in respect to Massachusetts, were brought to bear upon 
Charles II, inducing him, after long continued solicitation, to annul the 
union of New Hampshire and Massachusetts Bay and to institute 
proceedings for the abrogation of the charter granted in 1629, 
while his successor, James II, made haste, immediately upon his ac- 
cession, to disestablish all the colonial governments in New England. 
It is not pertinent to the purpose of this discussion to review all the 
issues raised in the ensuing controversy between the crown and the 
colonies. 

The principal contemporary objections to the political government 
that was developed in Massachusetts Bay, including the annexed terri- 
tory of New Hampshire, were (1) that the removal of the seat of exer- 
cises of the functions of government for the colony and the adminis- 
tration of the corporation to New England was not contemplated by 
the grantor nor authorized by the charter; (2) that the introduction 
of representatives of the freemen into the scheme of colonial govern- 
ment in substitution for the participation of the freemen en masse in 
the business of the General Court was an innovation not within the in- 



75 



tendment of the powers granted by the charter; (3) that the extension 
of political jurisdiction over the territory of Maine and New Hamp- 
shire was ultra vires; (4) that the General Court exceeded its charter 
authority in legislation; and (5) that certain specified acts were not in 
conformity to the limitation stated in the charter in the clause, — "so 
as such laws and ordinances be not contrary or repugnant to the laws 
and statutes of this our realm of England." 

1. In respect to the first of these objections (never suggested until 
after the colonial government had been in operation in New England 
thirty-one years), it has been shown that the removal of the immediate 
government and administration of the colony to New England was not 
only contemplated by the languag;e of the charter, but also that this 
purpose was actually understood by the king and the grantees. 1 
Laws of New Hampshire, 1679-1702, Introduction, p. xviii; 2 Doyle 
English Colonies in America, 88, 90; Commonwealth v. Roxburij, 
9 Gray, note, 509. 

2. The evolution of the delegated representation of the freemen in 
the government in the progress of the colony was the result of the in- 
crease of population that created a condition, in which the only alterna- 
tives were the exclusion of the freemen from the government or th^ 
adoption of a method of participation by delegation or representation. 
The choice of the latter alternative and the resulting method or inci- 
dent of procedure in the constitution of the General Court and the 
transaction of its business, whereby the representatives of the freemen 
became a house or body separate from the assistants, was a logical and 
necessary outcome of the development of the colonial government, 
which has concerned the critics of the New England Puritans more 
than it ever did the home government. The deliberate and official 
opinion of the king, with reference to this particular feature of the 
Massachusetts Bay government, as a method in the exercise of the 
powers of government, granted by the charter of 1629, is best indi- 
cated by the fact of the adoption of the principle of a division of the 
legislative body into two branches, which was a prominent provision of 
the commission by which the province of New Hampshire was or- 
ganized in 1679, and which reappeared in the Massachusetts Charter 
of 1691. Commonwealth v. Roxbury, 9 Gray, 481. The charter of 



76 



Connecticut of 1662 and that of Rhode Island, 1663, contained the 
same features. The evolution of the House of Representatives in Massa- 
chusetts was similar to that of the House of Commons. 2 Wilkins' 
Works, Andrews' Ed., p. 519. 

3. If the extension of territorial jurisdiction over Maine and New 
Hampshire had not been authorized by the Charter of Massachusetts 
Bay, the exercise of such a jurisdiction by agreement with the people 
of those territories could have no relation with the question of the 
original validity of the charter government. Commonwealth v. Box- 
bury, 9 Gray, 480. Such a government being the only one in existence 
in the outlying territory, would, as to that territory, be a de facto gov- 
ernment and the municipal law enacted by such authority would there- 
fore be held valid. 

4. It was the opinion of the king 's commission, sent over to America 
after the restoration to investigate the affairs of the colonies, that 
certain legislation of Massachusetts Bay transcended the powers 
granted by the charter of 1629. It was not contended, however, that 
the charter was thereby rendered invalid ab initio. It was the 
ordinary claim in later times taking the form of objection to the con- 
stitutionality of legislative acts. This is not regarded as anything 
affecting the validity of the constitution. Such a proposition would 
not now be regarded as merely unreasonable; it would be absolutely 
preposterous. 

Commenting on this clause, Judge Parker, in the Lowell Institute 
address before cited, says: 

' 1 But there was a restriction upon their legislation, religious as well 
as civil. They were to make no laws contrary to the laws of the realm ; 
and the question arises, What was the character and what was the 
extent of this restraint? 

"We may safely conclude that the meaning of the provision is not 
that they are to make no laws different from the common law of Eng- 
land, for much of that law was entirely inapplicable to their condition, 
so that they were under the necessity of making different laws. Laws 
different from or contrary to the laws of feudal tenure could not come 
within the prohibition. The same may be said of laws relating to the 
peerage, and divers other matters of more common concern. 

"So we may be assured that it was not a prohibition to make laws 



77 



different from the statutes of England, for it was known that it was to 
escape from some of those laws that they emigrated. If they could 
make no law which provided for a different form of worship than that 
which was established in England, — if they must establish that with 
all its concomitants, they would hardly have crossed the Atlantic for 
the privilege of voluntarily subjugating themselves by their own acts, 
to the pains and penalties, and violation of conscience, to which the 
acts of others would have subjected them if they had remained. More- 
over, they had no bishops,— could not consecrate any, — and no one 
proposed to do that for them when the charter was granted. Laud 
would doubtless have been pleased to do them that favor three or four 
years afterwards ; but their right of legislation, or the restraints upon 
it, .or the removal of restraints, did not depend upon that. 

' ' The true construction of the clause is that they shall make no laws 
contrary to, — antagonistic to, — in contravention of, the laws of the 
realm which extended or should extend over them, as inhabitants of 
the colony, and which were to be their paramount lav/." 1 N. H. 
Province Laws, 1679-1702, Introduction, p. xiv, xv, note. 

This exposition of the qualifying clause in the grant of the law- 
making power is entirely within bounds. It was not essential that the 
colonial acts should be the same as the contemporary English law on 
the same subject. It was not required that the one should not be con- 
trary to the other in terms and purpose. This point is illustrated by 
reference to the case of Smith v. Browne and Cooper, 2 Salkeld, 668, 
in which the law of Virginia, making the ownership of negro slaves 
valid, was approved, while it was declared in the same connection that 
the contrary was the law of England. [See, also, decisions of the 
Privy Council on the Law of Inheritances, ante p. 25. Deane, Hist, of 
the Charter, above cited, 354, 355, 356. 

It will be observed in an examination of the objections to the Bay 
Colony laws specified by the king's commissioners in 1665, that they 
were far more punctilious about expressions derogatory to the king's 
dignity, expressions reviving the employment of the obnoxious terms, 
"state" and "commonwealth," in preference to such terms as "his 
majesty's colony," and about provisions imposing inequalities in po- 
litical privileges upon communicants in the Church of England than 
they were about ordinary differences between the two systems of 
municipal law. 



78 



4 Massachusetts Bay Colonial Records, Vol. 4, Part 2, pp. 211-213. 

Parker, Lowell Institute Lecture, before cited. 

The crown commissioners specify the acts of the General Court of 
Massachusetts Bay to which they offered objections. They recom- 
mended a repeal of certain designated acts and parts of acts and 
certain affirmative legislation. Upon compliance with this advice it 
was apparently the purpose of the commission to treat the body of the 
Massachusetts Bay laws as in conformity with the charter and with the 
spirit of the constitution of the realm of England. Charles II., letter 
of June 28, 1662. 

It is noteworthy that in these specifications, occupying twenty-six 
articles, no objection was raised to the acts of 1641, 1647, relating to 
the great ponds. Records of Massachusetts Bay, Vol. 4, Part II, pp. 
211-213. No objections to this legislation appear in the chancery pro- 
ceedings in England which resulted in the abrogation of the charter. 
Gray's note, 75 Mass., 517; Parker, Lowell Institute Lecture, before 
cited. 

The judgment against the charter is printed in 4 Mass. Hist. Soc. 
Coll., ii. 246-278. The causes of forfeiture, as set forth in the Court 
of Chancery, were: The assuming by the governor and company the 
power to levy money (by poll taxes and duties on merchandise and 
tonnage) ; to coin money; and to require an oath of fidelity to the 
government of the colony. 

Deane, Hist, of the Charter, above cited, 382. 

These proposals are made a part of the appendix to this compilation. 
Appendix C. 

No objection to the so-called ordinances of 1641, 1647, was ever 
offered by the king, the privy council, or any crown officer, or any law 
officer in the home government or any judge of an English court in the 
earlier colonial period. 

If, however, the legislation of Massachusetts Bay had not been in 
conformity with the powers granted by the charter of 1629, that fact 
would not have impaired the validity of the laws passed in the period 
between 1641 and 1679, due effect being conceded to the conduct of 
the home government in its refusal or neglect to amend or repeal those 
laws. The relations of the colony under the charter with the crown 



79 



were similar to those existing between a territory of the United States 
and Congress. An act of Congress creating a territorial government 
and according the law-making power to a territorial Legislature would 
bear a close analogy to a colonial charter granted by the king in the 
colonial period. "The legislation," says Judge Cooley, "of course 
must not be in conflict with the law of Congress conferring the power 
to legislate, but a variance from it, may be supposed approved by that 
body, if suffered to remain without disapproval for a series of years 
after being duly reported to it." Constitutional Limitations, p. 33: 
Clinton v. Enflebrect, 13 Wall. 434, 446, opinion by Chief Justice 
Chase; Williams v. Bank, 7 Wend. 539, opinion by the chancellor. 

As a historical fact, there can be no doubt that the laws of Massa- 
chusetts Bay, continuously and repeatedly printed and widely circu- 
lated, were known to the home government. Records of Massachu- 
setts Bay, Vol. 4, Part 2, 1661-1674, p. 194; The Puritan Age in 
Massachusetts, by Greorge E. Ellis, 1888, 514. 

The assumption that the home government was not well informed 
as to the nature of the government in actual operation in Massachu- 
setts, its exercise of the law-making power, and the territorial extent 
of its colonial jurisdiction, if ever ventured, would be untenable ; in- 
deed, it would ignore all the public conditions in the affairs of the 
colony and all the information gathered through the medium of the 
king's commissions and the extensive correspondence of the colonial 
department, which now appear in the published papers of that time. 
See English Calendars, passim. 

The proceedings in chancery in 1684, instituted by the king against 
the charter of 1629, were, of course, designed to effect its abrogation. 
"The Charter of King Charles the First," by Charles Deane, 1 
Memorial History of Boston, 367. Under the prerogative, however, 
there has always been a question whether he had the right, without 
such proceedings, to change or abolish the political government estab- 
lished under his charter. The abrogation of the charter in chancery 
was finally acquiesced in as a suspension rather than a vacation of 
the colonial constitution of government, but not until a substitute 
charter or an amended charter had been granted, though the legality 
of the proceedings and the validity of the decree was publicly and 



80 



formally denied in England and never admitted in New England 
Parker, Lowell Institute Lecture, before cited, note, page 8; Gray's 
note, 75 Mass., p. 517. 

The municipal law, which had been the result of legislation under 
that government, however, was not affected by the vacation of the 
charter as a political constitution for the colony or as an act of in- 
corporation for the company. Shaw, C. J., in Commonwealth v. Alger, 
7 Cush. 76; Reporter's note, 9 Gray, 517; 66 N. H. 25; Washburn, 
Monograph on the Charter, above cited. 

"A new constitution *. ■ * * is to be regarded, not as a repeal, 
but as an amendment of the prior one." {Allegheny Co. v. Gibson, 
90 Pa. St. 397, 405, 407.) "It may be called a new constitution in the 
sense in which we call a machine new after it has left the repair shop. 
Still the fact remains that the constitution is but the prior consti- 
tution amended"; {Ibid., p. 406.) for though the amendments be radi- 
cal, they are but amendments where a large body of the prior con- 
stitution is retained, and the frame of the government, i. e., its form 
or system, remains substantially the same. {Ibid.) In such case, no 
intention to abrogate previously existing laws in general can be pre- 
sumed, in the absence of expression to that effect. {Ibid.) It is, 
therefore, a sound rule of constitutional interpretation, that a consti- 
tution is to be construed with reference to previous legislation ; {Balti- 
more v. State, 15 Md. 376; and see Daily v. Swope, 47 Miss. 367; 
Brown's App., Ill Pa. St. 72, 80) ; and the bearing of this rule is two- 
fold. ' ' "We are not to presume ■ that the f ramers of the constitution 
intended uselessly to repeal an ordinary and well-established rule of 
law," says the Supreme Court of Pennsylvania in a recent case. {Ed- 
mundson v. B. B. Co., Ill Pa. St. 316, 321, per Gordon, J.) 

Endlieh on the Interpretation of Statutes, par. 520. 

1. The king provided no other municipal law for Massachusetts Bay 
between 1684 and 1686 than that which had been enacted under the 
first charter government, and, — 

2. The king expressly declared upon the establishment of the Do- 
minion of New England by the decree of 1686, that all the existing 
laws of the several colonies to be included in the Dominion of New 
England were to be regarded as of continuing validity until others 



Page 80, line 9, instead of the words "above cited," read the words 
and figures as follows: "post 156." 



81 



should be enacted in their stead. 1 Laws of New Hampshire, 1679- 
1702, pp. 158, 236. 

These laws, enacted in the period of the first colonial union of New 
Hampshire, are held by the Massachusetts courts to be valid at the 
present time because (1) they were valid enactments at the time they 
were made and (2) they have never been repealed. Commonwealth v. 
Charlestoivn, 1 Pick. 183 ; Commonwealth v. Roxbury, 9 Gray 480. 

The act relating to the common or public right of fishing in the so- 
called great ponds was a part of the body of laws enacted by Massa- 
chusetts Bay and New Hampshire in the period in question. Colonial 
Laws of Massachusetts Bay, Whitmore's Ed., 1889, p. 170. 

Shaw, C. J., referring to this act in Cummings v. Barrett, et a., 10 
Cush. 188 (1852), says: 

"By the Colony Ordinance of 1641, '47, all great ponds, which are 
defined to be ponds of over ten acres, are declared public; and though 
lying within any town, shall not be appropriated to any particular per- 
son or persons. We are not aware that this ancient law has ever been 
altered. ' ' 

In Commonwealth v. Roxbury, 7 Allen 166 (1863), Judge Hoar- 
says he is not aware -that this law has ever been altered. He also re- 
marks "that by this ordinance it was intended to devote the great 
ponds to public use."" 

X. 

THE POLITICAL INCORPORATION OF NEW HAMPSHIRE 
WITH MASSACHUSETTS BAY, 1641-1679. 

Twelve years after the acceptance of the charter of 1629 by the col- 
ony and company of Massachusetts Bay, all there was' of New Hamp- 
shire as a body politic or political entity and in territorial extension 
was incorporated in the commonwealth and government of Massachu- 
setts Bay. New Hampshire thereupon became an organic part of it 
and subject to its constitution and laws without objection on the part 
of the home government. 

*In these commentaries the comparatively recent Massachusetts acts making twenty 
acres the minimum size for great ponds which should thereafterwards be regarded as 
public, has not been overlooked, but it has not been regarded as material to the point un- 
der consideration. 
6 



82 



XL 

THE RESULT OF THE UNION AS REGARDS THE VALID 
EXERCISE OF GOVERNMENTAL FUNCTIONS FOR NEW 
HAMPSHIRE, INCLUDING THE LAW-MAKING POWER. 

So far as the people and territory of New Hampshire were con- 
cerned, this union of New Hampshire with Massachusetts Bay consti- 
tuted a de facto government, if not a de jure government, exercising 
all the functions of a local colonial government. 

The laws of the colony, enacted and developed into a complete sys- 
tem or code in the time of the union were published in extensive 
printed editions in 1649, in 1660 and 1672. The union under the 
charter government of the Massachusetts Bay was notorious. It was 
permitted by the home government with that full knowledge that came 
from the public character of the union. It was the only government 
afforded or tendered by the mother country to New Hampshire during 
the period following the settlement in 1623 and during the existence 
of the union that ensued. 

This government was the voluntary choice of the people of New 
Hampshire. Formal Compacts of Union, 1 Laws of N. H., 1679-1702, 
pp. xxix-xxxiii. Its functions were exercised without interference on 
the part of the home government or any rival local government. It 
was the only colonial government the people of New Hampshire had. 
All the functions of government were performed to the satisfaction of 
its subjects and with all due regard to the objects, methods and re- 
sults of adequate and efficient government. This union and its exer- 
cise of the functions of a state existed so long that it was, at length, 
generally regarded and treated as permanent for the territory occu- 
pied by New Hampshire and Massachusetts Bay. There is ample 
authority for the recognition of this government, which actually 
existed in the manner and condition before stated, thirty-eight years, 
as a de facto government whose legislation, judicial decrees and 
administrative acts are to be treated as valid. The Supreme Court of 
the United States has repeatedly defined such governments and recog- 
nized their validity with reference to such functions as are here in 
question. Referring to one of the states of the Southern Confederacy, 



83 



in the period from 1861 to 1865, the Supreme Court says (after 
declaring the general undertakings of the Confederate government, the 
national or Federal government of the South, to be an absolute nul- 
lity and utterly ineffectual to any purposes) : 

' ' We admit, that the Acts of the several States in their individual 
capacities, and of their different departments of government, execu- 
tive, judicial and legislative, during the war, so far as they did not 
impair the supremacy of the national authority, or the just rights of 
the citizens under the Constitution, are, in general, to be treated as 
valid and binding. The existence of a state of insurrection and war 
did not loosen the bonds of society, or do away with civil government 
or the regular administration of laws. Order was to be preserved, 
police regulations maintained, crime prosecuted, property protected, 
contracts enforced, marriages celebrated, estates settled, and the trans- 
fer and descent of property regulated precisely as in time of peace. 
No one, that we are aware of, seriously questions the validity of ju- 
dicial or legislative Acts in the insurrectionary States touching these 
and kindred subjects, where they were not hostile in their purpose or 
mode of enforcement to the authority of the National Government, 
and did not impair the rights of citizens under the Constitution." 

Field, Justice, in Horn v. Lockhart, 84 U. S. 581; Lawyer's Ed., 
Book 21, 660. 

This view is repeatedly endorsed by the court, as, for instance, in 
Williams v. Bruffy, 6 Otto (96 U. S.) 193; S. C. Lawyer's Ed., Book 
24, 193. 

The conditions which constitute a cle facto government are absolute 
and plenary possession of the powers of government without inter- 
ruption and without possession of those powers by a rival claimant. 

Smith v. Stewart, 21 L. Annual, 67. 

The question of the existence of a de facto government is determined 
by the actual and uninterrupted possession and exercise of the powers 
of government. 

1 Kent's Comm. *167. 

The court, by Doe, C. J., in Jewell v. Gilbert, 64 N. H. 15, say: 

"A new state, springing into existence, does not require the recog- 
nition of other states to confirm its internal sovereignty. The existence 
of the state cle facto is sufficient, in this respect, to establish its sov- 
ereignty de jure. It is a state because it exists." 



84 



The principle is well illustrated in the case of " Penny Cook" 
(afterwards Rumford) and Bow. Massachusetts claimed to a line 
three miles north and east of the Merrimack, as far as the river ex- 
tended, and, in fact, occupied a considerable part of the territory. The 
Endicott Rock marks the farthest north that this theory carried the 
point from which the three miles was to be measured. On another 
theory the boundary was three miles from the junction of the Winni- 
piseogee and Pemigewasset rivers at Franklin. Massachusetts had 
twenty-eight towns on this territory north of its present line and west 
of the river. The new line, of 1740 cut off parts of the ancient Massa- 
chusetts towns. By the king's decree of March 5, 1740, the jurisdic- 
tional line was established as it is at present. Penny Cook was granted 
by Massachusetts and occupied by settlers about 1725. Bow was a 
later grant under New Hampshire authority, and there were no acts of 
occupancy under it until 1727, and after the grantees 'of Massachu- 
setts had taken their titles and effected the settlement. The rival 
claimants finally carried their dispute to the king. He decided in 
favor of the Massachusetts grant. 

History of Concord, Vol. 1, p. 214. See, also, that volume, passim, 
for a full history of the controversy. This case illustrates the point of 
our contention that the acts of a de facto government are recognized 
as valid when there is no rival actually exercising government over the 
same territory and people. The political jurisdiction of New Hamp- 
shire was approved and confirmed as de jure. The jurisdiction of 
Massachusetts exercised, de facto, in advance of any positive jurisdic- 
tional acts of New Hampshire was sustained to the extent of what was 
done in the ordinary course of legislation and municipal administra- 
tion affecting only persons and property, and not in contravention 
of any prior exercise on the part of New Hampshire of its rights 
of legislation and administration for the same territory and its inhabi- 
tants. 



85 



XII. 

THE TEXT OF THE ORDINANCES OF 1641, 1647. THESE 
ORDINANCES, ADOPTED IN THE TIME OF THE UNION OF 
MASSACHUSETTS BAY AND NEW HAMPSHIRE BY A GEN- 
ERAL COURT LEGISLATING FOR BOTH PROVINCES, 1641- 
1679, 1689-1692, PERIODICALLY REAFFIRMED, AND NEVER 
REPEALED, ARE INDISPUTABLE EVIDENCE OF LOCAL 
CIRCUMSTANCES AND CONDITIONS AND LEGAL USAGES. 

In the colonial and early state period in the New England colonies, 
free access to all the sources of supply of food fishes was an absolute 
necessity. Every colonist must have been compelled at times to re- 
sort to it. When crops failed there was and could be no other recourse 
for means of subsistence, for those residing at a distance from the sea- 
shore, but to the wild fowl, the fish in the waters and the game in the 
forests. (For a striking illustration of the straits to which the early 
settlers were put and the importance of the supply of food fishes in 
inland waters as late as the last century, see B. G. Willey, Hist, of 
the White Mountains, p. 278.*) In the earliest exercise of the law- 
making power on the part of the colonists of Massachusetts Bay, New 
Plymouth and New Hampshire, we discover the manifestation, expres- 
sion and embodiment in permanent laws of the principle which resulted 
from the necessities of this situation with regard to free and common 
access to the inland waters which afforded a supply of fish. 

It appears, furthermore, that down to the time of the intervention 
of the Percy Summer Club and its immediate ancestors in title in 
Christine Lake (North Pond), the public right of piscary had always 
been exercised in that water. History of the Lake by Ossian Ray (a 
member of the club), Fergusson's History of Coos County, 1888, pp. 
564, 565, Appendix D; Defendants' Testimony, Vol. Ill, passim. 

The physical environment and general conditions and necessities of 
the colonists were similar in Maine and New Hampshire. The histori- 

*The settlers of this town [Bethlehem] were hardy, persevering men, more nearly resem- 
bling Captain Rosebrook than any we have before met. To help out their small stock of 
provisions a party went at one time to Whitefield ponds for fish. On their return in the 
night a thick fog arose, completely hiding the trees which they followed as their guides, 
and, ere they were aware, they were lost. The cold was intense. They had no firearms, 
and life hung on their devising some method to keep themselves warm. Cutting down 
long, slender trees, they trimmed them, and, placing them across a log, with a man at 
each end, they commenced rapidly pushing them back and forwards, as men do a " cross- 
cut" saw. Diligently they plied their toothless saws all the night, working as only men 
work for their lives. 



86 



cal fact is well stated for both provinces by the Supreme Court of 
Maine in Cotrill v. Myricjc, 12 Me. 222 : 

"Fish were much relied upon in early times as a means of subsist- 
ence afforded by the common bounty of providence. ' ' 

The people of New Hampshire regarded these rights as important. 
The apprehension that if Mason should establish his title, they might 
be impaired was one of the grounds of their opposition to his preten- 
sions. This very point was a subject of discussion in the province 
assembly between Mason himself and his coadjutor, Mr. Richard Cham- 
berlain, on the one part, and the representatives of the people on the 
other part, in 1681. In a letter of Richard Chamberlain to the Lords 
of Trade, dated May 16, 1681, the writer says : 

"At the General Assembly of 3d March last Mr. Mason was present; 
all his grants and the Kings orders were read to the deputies. * * * 
I cannot omit to add that several scandalous libels about Mr. Mason 
were dispersed; * # * that he designed * * * that they 
should neither fish nor fowl, and the like, all of which I knew to be 
utterly untrue. By my conversation with him I knew that his aims 
are just the contrary." Fortescue's Calendar, 1681-1685, p. 51. 

It would be difficult to adduce better evidence that the people 
claimed all these rights and the proprietor conceded them at a period 
in which the relations of the parties were strained to the limit of for- 
bearance and in which a new political government for the province 
had been provided and established, principally to subserve his 
interests. 

Only an occasional remnant of the local ordinances of the New 
Hampshire towns, enacted in the period prior to the union with Massa- 
chusetts Bay is preserved, as the town records, except in exceptional 
periods and to a very limited extent, have been lost or destroyed. 
Laws of N. H., 1679-1702, p. xxv. 

The Exeter records for 1640 afford significant evidence on the point 
under consideration. 

Ordinance of second day, month 9, No. 6. "All creeks are free, 
only he that makes a weare therein is to have in the first place the 
benefit of it in fishing time, and so others may set a weare either above 
or below and enjoy the same liberty." 1 Laws of N. H., 1679-1702, 
Appendix, p. 740. 



87 



There is no apparent occasion or reason for doubt that the other 
records of Exeter and the complete records of the other towns of New 
Hampshire, if extant, would show an adequate treatment of this sub- 
ject of free fishing to the same purpose that the ordinance that has 
survived dealt with it, but including ponds as we]l as creeks. 

The colonial laws of New Plymouth declared that fishing and fowl- 
ing were to be free. Compact, Charter and Laws of Plymouth Colony, 
Brigham's Ed., 1S36, pp. 34, 282. 

To whatever extent the odious forest laws of England may have 
been in force "within the four seas," they were not in force in 
America. Opinion of the court in Concord Co. v. Robertson, 66 N. H. 
15, 16, 17. 

If the laws of the mother country had ever made the waters, the fish 
in and the soil under the great ponds private property and excluded 
the public from common use and enjoyment of them, that law never 
was transported to New England nor adopted by the three northern 
colonies. The existing natural conditions forbade it. The inexorable 
necessities of the people rendered it impossible. The laws actually 
passed in the colonies negatived the assumption. 

The theory of the law applicable in the colonies, as advanced by 
Blackstone and' already herein recited, however, made it improbable 
that one part of the common law was in force here any more than any 
other part or the system in its entirety, until made efficient to that 
end by decree of the king or the legislative acts of the colonies, or by 
an exercise of the right of adoption by usage of rules of property, con- 
duct and procedure that might become elements in the local common 
law. 

If, however, any part of it was here by the law of occupancy or dis- 
covery and concomitant migration of the municipal law of the mother 
country and other parts were not here by reason of not being adapted 
to local conditions, what could be less adaptable or consistent with 
colonial conditions or the industrial necessities of the settlers about 
the ponds accessible for inland fishing and fowling than an English 
relic of feudal landlordism excluding them from these privileges ? 



"The settlers of colonies in America did not carry with them the 
laws of the land as being bound by them wherever they could settle. 



88 



They left the realm to avoid the inconveniences and hardships they 
were under, where some of these laws were in force; particularly 
ecclesiastical laws, those for payment of tithes, and others. Had it 
been understood that they were to carry these laws with them, they 
had better have stayed at home among their friends, unexposed to the 
risks and toils of a new settlement. They carried with them a right 
to such parts of laws of the land as they should judge advantageous 
or useful to them; a right to be free from those they thought to be 
hurtful, and a right to make such others as they should think necessary, 
not infringing the general fights of Englishmen; and such new laws 
they were to form as agreeable as might be to the laws of England." 
Franklin, Works by Sparks, Vol. IV, p. 271. 

See, also, "Law in America, 1776-1876," by George T. Bipsham, 122 
North American Review, p. 156, quoted in 1 Laws of N. H., 1679-1702, 
p. xii ; Joel Parker, Lecture, before cited, p. 31 ; numerous authorities 
cited by Judge Cooley, Const. Lim., p. 31, note 1. 

With such conditions surrounding them as have been mentioned, 
with powers of government and legislation conceded to them by the 
charter, and with no constitutional and no legal obstacles forbidding 
the introduction, assertion and continuance of the public right of fish- 
ing in the great ponds, the united colonies of Massachusetts Bay and 
New Hampshire, as we have seen, made the existing rights, interests 
and necessities of the public in these waters a subject of a legislative 
declaration at a very early date, and two important and far-reaching 
enactments were the result. The first appeared in the Body of Lib- 
erties, which was promulgated in 1641, the year of the consummation 
of the union of New Hampshire with the Bay Colony. 

The first declaration was article 16 of the Body of Liberties and 
was as follows: 

"Every Inhabitant that is an howse holder shall have free fishing 
and fowling in any great ponds and Bayes, Coves and Rivers, so f arre 
as the sea ebbes and fiowes within the presincts of the towne where 
they dwell, unlesse the free men of the same Towne or the Generall 
Court have otherwise appropriated them, provided that this shall not 
be extended to give leave to any man to come upon others proprietie 
without there leave." Whitmore, Colonial Laws of Massachusetts, 
Ed. of 1889, p. 36 ; 1 Laws of N. H., 1679-1702, Appendix, 718. 



89 



It is evident that this liberty was open to the criticism that its 
meaning was not entirely clear. 

In 1647 another act was passed {%. e., it is assigned to that date on 
the official publication) on the same subject, which, with that of 164.1, 
evidencing the usages of both colonies and the permanent law of the 
colony of Massachusetts Bay, afterwards including Maine and New 
Plymouth, the acts are indisputable evidence of the usage in New 
Hampshire. This amendatory or explanatory legislation obviated ail 
occasion for question or doubt as to the purpose of the original enact- 
ment in the Body of Liberties. The essential princples of the law have 
continued in each of these provinces, colonies and states to the present- 
day. 

' ' Every Inhabitant who is an housholder fhall have free fifhing and 
fowling in any great ponds, bayes Coves and Rivers, fo f arr as the Sea 
ebbs and flowes, within the precincts of the towne where they dwell, 
unles the freemen of the fame Town or the General Court have other- 
wife appropriated them. Provided that no Town fhall appropriate 
to any particular perfon or perfons, any great Pond containing more 
then ten acres of land, and that no man fhall come upon anothers 
propriety without their leave otherwife then as hereafter exprefsed. 
The which clearly to determine, It is Declared, That in all Creeks, 
Coves and other places, about and upon Salt-water, where the Sea ebbs 
and flowes, the proprietors of the land adjoyning fhall have propriety 
to the low- water-mark, where the Sea doth not ebb above a hundred 
Rods, and not more wherefoever it ebbs further. Provided that fuch 
proprietor fhall not by this liberty, have power to ftop or hinder the 
paffage of boates or other vefsels, in or through any Sea, Creeks or 
Coves, .to other mens houfes or lands. And for great Ponds lying in 
common, though within the bounds of fome Town, it fhall be free for 
any man to fifh and fowle there, and may pafs and repafs on foot 
through any mans propriety for that end, fo they trefpafs not upon 
any mans Corn or Meddow. [1641, 47.] " 

AYhitmore, Colonial Laws of Massachusetts, Ed. of 1889, p. 170. 

See, also, compilations by Mr. Whitmore and his notes, in editions 
of 1887, 1889, and 1890, passim, and the notes by the Reporter (Hor- 
ace Gray), accompanying, Commonwealth v. Roxbury, 75 Mass. 513. 

The compilation of 1641, known as the Body of Liberties, was pub- 
lished in manuscript and copies sent to all the towns, including those 



90 



of the New Hampshire part of the united colonies constituting the 
Massachusetts Bay government. Whitmore, Col. Laws, Mass. Bay., 
1889, p. 9. 

A revised edition, containing the acts relating to the great ponds, 
was printed in 1648- '49 and published in 1649. Whitmore, Colonial 
Laws of Mass. Bay, Ed. 1889, p. 79. 

The next printed edition of the laws of Massachusetts Bay, as a 
body or compilation, bears the date of 1660, and retains the acts of 
1641, '47, relative to the great ponds. Whitmore 's Ed., 1889, p. 170 
(original edition, p. 50). 

The next printed compilation of the laws of Massachusetts Bay 
Colony (still comprehending New Hampshire) appeared under date of 
1672. Whitmore 's Ed., 1887, p. 1. 

This contains (pp. 90, 91) the same acts relative to the great ponds, 
as before quoted, and this law afterwards remained unchanged, either 
in form or substance. 

It has been objected against the validity of the 1647 part of those 
ordinances that the provision permitting fishermen and fowlers to pass 
over unimproved land for the purposes of the act, anywhere in fact, 
provided no trespass was committed on corn or meadow, transcended 
the limitations of the law-making power. This provision was entirely 
consistent with the laws of parliament of that day. An act of James I 
makes it lawful for fishermen in Somerset, Devon and Cornwall to 
pass over lands along the coasts and stretching back from them and 
to watch on high lands nearby for the approach of schools of fish, and 
exempts fishermen and watchmen from liability to actions of trespass 
for those acts. Pulton's Statutes, imprint of 1617, p. 237, Id. Ap- 
pendix to this argument, B. No. 1. 

In the colonial highway act it was provided that damages should 
be recoverable only for crossing those parts that were improved. 
Colonial Laws of Massachusetts, Ed. 1660, Whitmore 's reprint, Boston, 
1889, p. 157 ; Appendix, B. No. 2. 

It was also a provision in the colonial statutes that no damages 
should accrue for the public occupancy for travel of lands adjoining 
foundered roads. 

The ordinance, in the particulars mentioned, was entirely within 



91 



the precedents established and powers granted by the English fisher- 
men's protection act and the colonial highway act. 

Xo decree or edict of the king, abrogating or repealing the laws 
enacted by the Colony of Massachusetts Bay in the period between 
1641 and 1679, was ever promulgated. On the contrary those laws 
were ratified, approved and confirmed by the crown by written orders. 
This declaration was made by the king (James II) in 1686, six years 
after the establishment of the province of New Hampshire, by article 
10 of the instructions to Sir Edmund Andros, Governor General of the 
Dominion of New England, constituted that year. 1 Laws of N. H., 
1679-1702, p. 157, 236. The same instructions were repeated in 1688. 
Id., p. 236. The terms of the order were as follows: 

"The lawes to Continue in force untill others shall be made. 

"Our will and Pleasure is that all Lawes, Statutes, and Ordinances 
within Our Territory and Dominion of New England shall Continue 
and be in full force and vigor So far forth as they do not in any wise 
Contradict, Impeach, or Derogate from Our Commission Orders, or 
Instructions untill such time as with the advice and consent of the 
Councill, You shall pass other Lawes for the good Government of 
our S'd Territory and Dominion, which you are to do with all Con- 
venient Speed." 

The king and queen, in 1691, appear to have recognized the fact 
that the province had pre-existing laws at the time the instructions 
were drawn for the governor prior to the organization of the second 
province government, 1 N. H. Laws, 1679-1702, 510 (although the 
lieutenant-governor and his council the next year may have enter- 
tained a different opinion from that of the king as above expressed). 

XIII. 

THE MUNICIPAL LAW SUBSISTING IN NEW HAMPSHIRE 
UPON THE ERECTION OF THE PROVINCE GOVERNMENT 
BY THE KING'S COMMISSION BY JOHN CUTT IN 1679 AND 
IN THE SUCCEEDING YEARS. 

King Charles II, in pursuance of comprehensive plans respecting 
colonial government and administration in New England, divided the 
united colony and constituted New Hampshire a province with a gov- 
ernment whose powers were defined by the terms of a royal commission. 



92 



The separation of the territory and people of New Hampshire from 
Massachusetts Bay in 1679 marks a change in the political constitution 
of the inhabitants of the new province, but not an abrogation of their 
existing municipal law. The theory that the municipal law of the 
people of the severed territory was repealed or rendered invalid in 
whole or in part by the change in political government and allegiance 
is not sustained upon considerations of reason or authority. 

The municipal laws of Massachusetts Bay, previously enacted during 
the period of union, were the laws of the province when the new po- 
litical government (or constitution) was provided, and continued to 
be the laws of the province, except as they were superseded by pro- 
visions of the king's commission, by subsequent enactments of the 
General Assembly or by other competent colonial legislative bodies 
having jurisdiction over the territory of New Hampshire so far as the 
subsequent acts were manifestly inconsistent with particular acts and 
specific provisions of the laws enacted in the time of the first union. 

In cases of annexation or other changes in governmental jurisdiction, 
political law necessarily alters, while municipal law continues in force. 
The municipal laws continue in force until they are suspended by other 
laws enacted in place of them by the new sovereign or by an assembly 
authorized by his commission. This is the universally admitted rule. 
It is sometimes said that this results from the survival of the laws of 
the former government or former sovereign ex proprio vigor e. Another 
reason for the rule assigned is that the continuance of the municipal 
law, previously existing, is not the continuing mandate of the old sover- 
eign, but the presumptive mandate of the new. It is also declared 
that "the reason is because, though a conqueror may make new laws, 
yet there is a necessity that the former should be in force until the new 
are obtained." Blanckard v. Galdy, 4 Mod., 222-225. Hall v. Camp- 
bell, Cowp. 204. 

Whatever the reason, there is no disagreement in the authorities 
to the fact. 

The Supreme Court of the United States says, in Chicago, etc. By. 
Co. v. McGlinn, 114 U. S. 542, 546, opinion by Field, J. : 

"It is a general rule of public law, recognized and acted upon by 
the United States, that whenever political jurisdiction and legislative 



93 



power over any territory are transferred from one nation to another, 
the municipal laws of the country, that is, laws which are intended 
for the protection of private rights, continue in force until abrogated 
or changed by the new government or sovereign. By the cession pub- 
lic property passes from one government to the other, bnt private 
property remains as before, and with it those municipal laws which 
are designed to secure its peaceful use and enjoyment. As a matter 
of course, all laws, ordinances, and regulations in conflict with the 
political character, institutions, and constitution of the new government 
are at once displaced. Thus upon a cession of political jurisdiction 
and legislative power — and the latter is involved in the former — to the 
United States, the laws of the country in support of an established re- 
ligion, or abridging the freedom of the press, or authorizing cruel and 
unusual punishments, and the like, would at once cease to be of ob- 
ligatory force without any declaration to that effect ; and the laws of 
the country on other subjects would necessarily be superseded by exist- 
ing laws of the new government upon the same matters. But with 
respect to other laws affecting the possession, use and transfer of 
property * and designed to secure good order and peace in the com- 
munity, and promote its health and prosperity, which are strictly of a 
municipal character, the rule is general, that a change of government 
leaves them in force until by direct action of the new government they 
are altered or repealed. American Insurance Co. v. Canter, 1 Pet. 
542; Halleck, International Law, ch. 34, 14." 

" 'The laws of a conquered country,' says Lord Mansfield, 'continue 
in force until they are altered by the conqueror ; the absurd exception 
as to pagans, mentioned in Calvin's case, shows the universality and 
antiquity of the maxim. For that distinction could not exist before 
the Christian era, and in all probability arose from the mad enthusiasm 
of the crusades.' This may be said of the municipal laws of the 
conquered country, but not of its political laws, or the relations of the 
inhabitants with the government. The rule is more correctly and 
clearly stated by Chief Justice Marshall, as follows : ' On the transfer 
of territory it has never been held that the relations of the inhabitants 
with each other undergo any change. Their relations with their for- 
mer sovereign are dissolved, and new relations are created between 
them and the government which has acquired their territory ; the law, 
which may be denominated political, is necessarily changed, although 
that which regulates the intercourse and general conduct of individ- 
uals remains in force until altered by the newly created pow T er of the 

* The italics are not in the original. 



94 



State.' This is now a well-settled rule of the law of nations, and is 
universally admitted. Its provisions are clear and simple, and easily 
understood. ' ' 

Halleck, Int. Law, c. xxxii, 14. 

"It is a settled principle, in the law and usage of nations, that the 
inhabitants of a conquered territory change their allegiance, and their 
relation to their former sovereign is dissolved; but their relations to 
each other, and their rights of property, not taken from them by 
orders of the conqueror, remained undisturbed. The cession or con- 
quest of a territory does not affect the rights of property. Vattel, b. 
3, c. 13, sec. 200; The United States v. Percheman, 7 Peters 51; Mitchel 
v. The United States, 9 Peters 711; Strother v. Lucas, 12 Peters 410, 
438. The laws, usages, and municipal regulations in force at the time 
of the conquest or cession, remain in force, until changed by the new 
sovereign. Calvin's case, 7 Co. 17; Campbell v. Hall, Cowp. 209; 9 
Peters 711, 734, 748, 749. Strother v. Lucas, 12 Peters 410. There is 
no doubt of the power of the sovereign to change the laws of a con- 
quered or ceded country, unless restrained by the capitulation or treaty 
of cession. In the case of the Canal Appraisers v. The People, in 17 
Wendell 587, Chancellor Walworth declared, that' in the case of a 
country acquired by conquest, no formal act of legislation is necessary 
to change the law; the mere will of the conqueror is sufficient. This 
is the case in governments where the conqueror is in possession of the 
legislative as well as the executive power; and until a nation or terri- 
tory is wholly subdued, the conqueror is only entitled, by the usage of 
nations, to hold it as a temporary possession, by military occupation, 
until the final issue of the conquest is settled by treaty, or by the com- 
petent constitutional power." 

1 Kent's Comm. 178, note (a). 
U. S. v. Percheman, 7 Peters 86. 

"In general," says Chief Justice Shaw, "a revolution or change in 
the form of political government does not annul the municipal laws 
regulating property or divest rights of property acquired in them." 

Commonwealth v. Alger, 7 Cush. 76. 

The commission issued by Charles II, under date of September 18, 
1679, to John Cutt, separating New Hampshire from Massachusetts 
Bay, erecting the territory into a province and providing a new gov- 
ernment for it, related only to the political constitution of the colony, 



' 95 

and contained nothing abrogating or directly affecting its municipal 
government. The general rules of national law were operative to all 
intents and purposes. The pre-existing municipal laws, the relations 
of the people with each other and their rights of property remain un- 
disturbed. Indeed, until the enactment of the provisions of the Cutt 
code, so called, there could have been and was no other municipal law 
to regulate property rights and relations of the people with each other 
except what had been enacted in the period of the union by the Gen- 
eral Court of New Hampshire and Massachusetts, commonly described 
as the General Court of Massachusetts Bay. 

This view, which is beyond question when referred to the general 
authorities on the subject, has also the specific endorsement of Chief 
Justice Jeremiah Smith. Treatise on Probate Law, Smith's N. H. 
Reports, 503 ; Id., Thompson v. Bennett, 337. See, also, Nudd v. 
Hobbs, 17 : 527 ; Clement v. Burns, 43 : 621. 

It was in the same connection that Judge Bellows remarked, per- 
haps on the authority of St over v. Freeman, 6 Mass. 438, which he 
'cited, that "As a rule of positive law, the ordinance of 1641 was not 
binding upon New Hampshire." Whether he meant, as the courts of 
New ^Hampshire have distinctly held in the last fifteen years, that the 
fundamental principles of that act, i. e., 1641, 1647, have always been 
the common law of the state, except the part relating to the flats, or 
that he understood, as the Massachusetts case above cited puts it, that 
the legal effect of the vacation of the charter of 1629 in chancery in 
1684 worked a repeal of the laws previously enacted under it, while a 
permanent usage resulting from it having the force of law, may not 
at this date be ascertainable. It is certain, however, that he held that 
the essential principles of the ordinances continued in the common law 
of New Hampshire. 

It may be remarked here that later authority on the question of the 
effect of the repeal of the charter in 1684 is contrary to the opinion 
in Storer v. Freeman. 

In an article contributed to the Massachusetts Historical Society in 
1875, Prof. Emery Washburn says : 

"If we look to the Provincial Charter itself, I can find nothing in 
its phraseology which seems to suggest any necessity to re-enact or 



96 

review any prior laws, in order to secure to the people any of their 
rights of person or property. It is a matter of historical truth that a 
great jealousy prevailed in some who had an influence in the English 
politics, against the free tenure under which, by the Colony Charter, 
the people of Massachusetts held their lands. This feeling was es- 
pecially strong on the part of Andros and his supporters. (Sullivan's 
Land Tit. 55.) But the new charter declared that all lands which had 
been granted by any General Court formerly held, should 'be hereafter 
held and enjoyed according to the purport and intent of such re- 
spective grant.' 

"It recognized no occasion to renew old grants in order to revive 
titles. It confirmed the tenure by which lands were to be held. Nor 
does it anywhere contemplate any occasion to re-enact resuscitate laws 
which had before existed. And Chalmers, when speaking of the effect 
upon the people of the colony of the change in their charter, says the 
new Governor, Sir William Phipps, was received with sorrowful pomp 
in May, 1692. 'Yet the change of rulers made little alteration in the 
government. Nearly the same persons continued in power, pristine 
customs remained, and, what was of still greater influence, the ancient 
habits of an unmixed people still urged their pursuits.' (Hist. 235.) 

"The conclusion to which these considerations lead us, that the re- 
scinding of the charter had no effect upon the existing laws except 
such as derived their immediate force and validity from that instru- 
ment, — such, for example, as created the powers and duties of courts 
and civil officers, — will, I think, be sustained by the published opinions 
of some of our most eminent and learned jurists." Proceedings of the 
Mass. Hist. Society, Vol. 13, p. 451. 

The opinions of Chief Justice Parker and Judge Bellows in the 
cases above cited, although relating technically to "lands bounding on 
the sea-shore" are equally applicable to questions depending upon the 
persistence and survival of the ordinances of 1641, 1647, or the essen- 
tial, controlling principles in those ordinances, as continuing elements 
in the common law of the state, the provisions of those ordinances relat- 
ing to the so-called ' ' flats ' ' and the ' ' great ponds ' ' being inter-related in 
the same clauses in them. Unless there was some constitutional defect 
in certain features of them, which might affect particular parts and 
which might not affect other parts, as held in Concord Co. v. Robert- 
son, the valid elements, one part the same as another, would be of con- 
tinuing vitality in the common law, notwithstanding changes of politi- 



97 



cal government occurring from time to time. In the law of New 
Hampshire one part of an act may be found unconstitutional without 
impairing the validity of another part, the statute being valid to the 
extent of the constitutional limit. State v. Jackson, 69 N. H. 511. 

The cases above cited, in which the opinions of Judges Smith, Par- 
ker and Bellows appear, will be discussed more fully under a later 
subdivision of the argument. 

Considering the status, in subsequent periods, of the laws enacted by 
New Hampshire and Massachusetts Bay, united as one colony from 
1641 to 1679, it will be found necessary to examine to some extent the 
successive political governments provided for the province and the 
colony and the governments which the people provided for themselves 
at intervals when no other government was provided for them by roya] 
authority. 

XIV. 

THE CUTT GOVERNMENT CONSIDERED WITH REFER- 
ENCE TO ITS RELATION TO EXISTING COLONIAL LAWS 
AND WITH REFERENCE TO ITS OWN CONSTITUTION, ITS 
LAW-MAKING AUTHORITY AND ITS EXERCISE OF THAT 
AUTHORITY. 

The king's commission of September 18, 1679 (30 Charles II), under 
which the first separate province government of New Hampshire was 
established the same year, according to the calendar of. the old style, 
but in the winter of 1679-1680, and the spring of 1680, according to 
the present calendar, provided definitely a form of government for the 
province and prescribed the powers to be exercised under it. For the 
time being it was the organic law for the president and council, the 
other members of the government and the inhabitants of the province. 

(1.) The great majority of the New Hampshire people and their 
General Assembly in 1679-' '80 were antagonistic to the laws of Eng- 
land. The antipathy of Massachusetts to the laws of England as a 
system (proofs of which have already been exhibited), involving as 
it did an ecclesiastical polity that they repudiated, the remains of the 
feudal system, which in a very large degree they rejected, and a 

multitude of other features that they could not possibly be expected to 
7 



98 



approve, was intensified by local reasons, local conditions and local 
interests in New Hampshire. That conspicuous accompaniment of 
landlordism, now apparently fastened upon the law of waters in 
England, making the great fresh-water ponds and inland lakes the 
exclusive private domain of the great land holders, is consistent with a 
system of land law T which reduces the common people to the status 
of over-burdened tenants, hopeless of any improvement, in hereditary 
and unalterable conditions, but the assumption that the people of 
New Hampshire were willingly adopting them as- their own laws 
in the midst of their great contest with the Masonian proprietors 
against the principle of English landlordism and its imposition upon 
them by their own election and choice is preposterous beyond com- 
prehension. It was a scheme of manorial control and tenant subjec- 
tion, pure and simple, that the Masonian proprietors were endeavoring 
to force upon the province. "While it was supposed that farmers and 
other landowners in Massachusetts held their title in fee simple, 
the proprietors of the Masonian title constantly threatened the in- 
habitants of New Hampshire with subjection to a scheme of landlord- 
ism, just as hateful as that which had been one of the most potent 
causes of their expatriation. The province had been created by reason 
of the insistence of the representatives of the prospective "Manor 
of Mason Hall." Robert Tufton Mason, the expectant landlord, was 
made a councilor of the new government by the king and a coadjutor, 
Richard Chamberlain, was made secretary of the province. In the 
background behind them was Edward Randolph, cousin of Mason, and 
principal promoter of the enterprise. Immediately upon the organiza- 
tion of the province, the conflict was renewed between the exponents 
of a system of independent land holding and the free public use of the 
inlets of the sea, the great ponds and the rivers of the interior in New 
Hampshire, on the one part, and manorial lordship, with all its Angli- 
can incidents of exclusiveness, oppression and extortion, on the other. 
The issue, then, was not in a very wide degree or character different 
from that now raised and urged by the New Jersey syndicate of club- 
men against the people of New Hampshire. This is not a speculative 
assertion. Chamberlain, in his letter to the Lords of Trade of May 
16, 1681, says: 



99 



"At the General Assembly of 3rd March last Mr. Mason was 
present ; all his grants and the king 's orders were read to the deputies 
to give them all the satisfaction imaginable : They were so far from 
receiving it that they opposed Mr. Mason 's title though unable to show 
any of their own, and encouraged the deputies to opposition and to 
preparation of a remonstrance from their respective towns. The 
Council doubted if Mr. Mason were the true person, and the deeds 
true copies; I was summoned to testify to my own hand, sign &c, but 
they doubted still because they would still doubt. I cannot omit to 
add that several scandalous libels about Mr. Mason were dispersed — 
that he designed to enslave the people, to make them pay two shillings 
for every chimney and ten shillings for every room they kept fire in, 
that they should neither fish nor fowl, and the like, all of which I know 
to be utterly untrue." Fortescue's Calendar, 1681-1685, Sect. 106, 
p. 51 ; 17 N. II . State Papers, 550 

Thus the people were again by their representatives asserting the 
same rights and liberties of fishing and fowling which had always 
existed in the territory of this province (66 N. H. 6, 15, 24), and which 
had been declared as a right and liberty in the Body of Liberties, 
the Puritan Magna Charta, in 1641, 1647. The same right was un- 
questionably conceded to the people in person by the "Lord of the 
Manor of Mason Hall. ' ' There is no evidence that he ever repudiated 
this concession. There is no evidence that his associates, if he had 
any, disclaimed responsibility for what he and his coadjutor had 
agreed to in the province assembly. 

The evidence of a colonial condition peculiar to northern New 
England, including New Hampshire, is made indisputable in the years 
1679~1681. The evidence of a persistent and permanently established 
general custom, based upon immemorial usage, in the same behalf, 
is equally indubitable. The identity of conditions, customs and 
usages, disclosed by article 16 of the Body of Liberties and the 
declaratory act in the amendment thereof, assigned to the year 1647, 
with the same usages, customs and rights not only asserted by the 
provincials but also conceded by the Masonian proprietor in the trans- 
actions of 1681, is absolutely conclusive and fixes the status of the 
question as outside of the realm of debate or cavil at this stage of the 
history of the province. In passing, the important and essential fact 



100 



must not be overlooked, that in 1681 the agreement or concession of the 
proprietor was made at the capitol of the province by the proprietor 
in person in the presence of his friend, the secretary of the province, 
who made a record of it that has been preserved to the present day. 

The king had commissioned an assembly to make laws for this 
province. The language of the instrument in this particular was as 
follows : 

"We do hereby will, authorize and require # * * the making 
of such acts, laws and ordinances as may most tend to the establishing 
them in obedience to our authority; their own preservation in peace 
and good government and defense against their enemies." 1 Bouton, 
N. H. Province Papers, 379 ; 1 Laws of N. EL, 1679-1702, 6. 

He had constituted the governor and council as a court of judica- 
ture with specified powers. Bouton, supra, 376 ; Laws, supra, 3. 

He had given directions for the courts constituted by the commission 
as to the rules by which they were to be guided in the administration 
of their office, in so far as they were not controlled by local statutes 
and the local common law and usages having the force of law as 
adopted and established in the province. The language of the com- 
mission on this point was as follows : 

"The forms of proceeding in such cases and the judgment there- 
upon [i. e., pleas of the crown, matters relating to the conservation of 
the peace, punishment of offenders, civil suits and actions between 
party and party, suits and actions between the king and his subjects 
in the province, suits and actions that concern the realty and relate 
to a right of freehold and inheritance, those that concern personalty, 
those relating to some matter of debt, contract, damage or other per- 
sonal injury, and mixed actions that may concern both realty and per- 
sonalty] to be given, be as consonant, and agreeable to the laws and 
statutes of this our realm of England, as the present state and condi- 
tion of our subjects inhabiting within the limits aforesaid and the cir- 
cumstances of the place will admit." Bouton, supra, 376 ; Laws, supra, 
3, 4. 

This provision of the commission cannot be regarded otherwise than 
as an expression of a purpose on the part of the king to authorize the 
courts in the province to recognize the statutes, customs and usages 
and common law of the province, as well as the laws of England, as 



101 



guides in the decision of causes. The most important consideration, 
however, is the prominent place that is accorded the "present state 
and condition of our subjects inhabiting within the limits aforesaid 
and the circumstances of the place." These fixed the limit upon the 
interposition of the rules in the laws of England to control the judg- 
ments of the local court inasmuch as it is clearly stated that the laws 
and statutes of the realm of England need not be accepted in the 
province, only as far as what are described as the state, condition and 
circumstances of the people and of the place will admit of in the dis- 
position of court causes. The subject, however, must be examined 
somewhat further in order to ascertain whether the king's order in 
this behalf was actually adopted, practically rejected or treated as 
directory or advisory rather than mandatory, — whether it was to be 
put in execution as a working rule for the local court, except so far and 
in such respects as it comported with local conditions, usages, interests, 
laws and political and industrial purposes constituting the settled 
policy of the province. 

As the first article in a series of laws adopted by the General As- 
sembly, the following appears as the declaration of a fundamental 
principle to be followed in the business of legislation, in the adminis- 
tration of justice by the courts and the conduct of public and private 
affairs in the colony. It is contained in the preamble to the laws 
enacted under the Cutt commission. 

It is as follows: 

"Whereas his majesty hath been pleased by his Letters Patents, 
sent to us, to confer such power upon the General Assembly as to 
make such laws and ordinances as may best suit with the good gov- 
ernment and quiet settlement of his majesty's subjects within this 
province : 

"It is therefore ordered and enacted by this General Assembly 
and the authority thereof that no Act, Imposition, Law, or Ordinance 
be made or imposed upon us but such as shall be made by the said 
Assembly and approved by the President and Council from time to 
time." 1 Bouton, N. H. Province Papers, 382. 

The last clause of this paragraph does not appear in the English 
copy, printed in 1 N. H. Laws, 1679-1702, 11, but the home govern- 



102 



ment was advised in regard to it in a report made to the king and 
council, which was read before them September 6, 1681. 17 N. H. 
State Papers, 555 ; Laws, supra, 786. 

This article undoubtedly represents the genuine sentiments of the 
people of the province regarding any attempt on the part of the king- 
to curtail the right of local self-government. 

'They recognized Mason and his allies as the moving spirits behind 
the commission and the instructions which were emanating from the 
king and council. It was no more than would be expected, if they 
were deeply moved against the king and the home government as par- 
tisans of the proprietor in his grand purpose of appropriating every 
foot of land that they had reclaimed from the wilderness and were de- 
fending, unaided, in almost interminable warfare against the savages. 
Their legislative action at this time has an important bearing on the 
question whether they intended to permit the laws, usages and cus- 
toms of the place, as already established, to be supplemented on lines 
of local policy, which they regarded as important and essential, by 
the new interposition of undesirable and. unwelcome provisions of the 
English municipal law. It is not improbable that this should be re- 
garded as the beginning of a period of modified and limited recognition 
of the English common law rules of procedure and rules of decision in 
the trial of causes. This is the period specified by the Supreme Court 
of New Hampshire as the one in which this qualified adoption of the 
English common law began in New Hampshire. State v. Rollins, 9 N. 
II. 560. Judge Parker's opinion in this case, however, should always 
be read in the light of his opinion expressed in his Lowell Institute Ad- 
dress, pamphlet edition, 33; Society's edition, 386, where he indorses 
Blackstone's opinion based on that of Chief Justice Holt and other 
exponents of the common law and the authorities on the law of na- 
tions, that these colonies were to be regarded as conquered territory, 
in which the common law had not extended by its own vigor but in 
which it was adopted gradually as a local jurisprudence was de- 
veloped, and in connection with the opinions in State v. Gilmanton, 
9 N. H., and Nudd v. Rolls, 17 N. H. 

Referring now particularly to the subject of the public right of 
fishing and fowling in the four or five hundred great inland ponds, 



103 



which created a peculiar- local condition entirely different from any 
that existed in England, whether the subject be considered with ref- 
erence to English legal, industrial, or physical conditions, it is very 
certain that neither the royalist party nor the party of local self-gov- 
ernment had any intention of taking over from England into the 
province at this time provisions or principles of the English statutes 
or common law that would exclude the pioneers about their homes on 
this frontier, in their migrations as the frontier advanced into the 
wilderness, in their explorations in the interior, — constantly hard 
pressed for the necessities of life, constantly extending their holdings, 
constantly approaching and enveloping these waters in their enter- 
prises, — from fishing and fowling in accordance with the usages, cus- 
toms, and common law of the people occupying the territory, pro- 
nounced by a public act periodically in the time of the union to be a 
public right and admitted and approved as such by the proprietor of 
the great Masonian patent. 

If this deserves to be regarded as a question, however, it was not 
left in the domain of doubt upon contemporary authority. In ad- 
dition to the public concession of the " proprietor of the soil," the 
General Assembly adopted a declaration of rights in this behalf, 
sufficiently certain and definite by article 14 of the general or civil 
laws of the series adopted in 1680-1681. This provided that the laws 
under which they had been recently governed, meaning the laws of the 
time of the union with Massachusetts, should be continuing rules for 
the government of the courts and the town authorities. The title of 
this clause in the copy retained in the Province Archives is "Former 
Laws To Stand." (Bouton, supra, 398.) In the English copy the 
sections do not have titles. (Laws, supra, 11-40.) 

The fifty-four sections of the laws passed under the Cutt com- 
mission were included in the legislation in the period from March 16, 
1680, to May 3, 1681. The laws of the time of the union were evi- 
dently adopted in order to provide for all subjects of legislation which 
had found place in that system of statutes and the same assurance 
of existing rights upon which the people had relied as the text of 
article 14 of the Cutt laws has it, "according to the laudable customs 
hitherto used." (Laws, supra, 28.) The then last printed compila- 



104 



tion of the laws of the time of the union was that of 1672, Whit- 
more 's edition, Boston, 1887. Those laws occupied one hundred 
ninety-seven pages, folio, and were distributed under nearly two hun- 
dred titles. 

A serious contention had developed between the representatives of 
the party of local self-government in the province and the Masonian 
party (not over rights in the great ponds but over other issues) which 
foreshadowed the abrogation of the Cutt commission. The correspond- 
ence preserved in the English archives, some of which is published in 
Vol. 17 of the New Hampshire State Papers, and the remainder in 
Fortescue's Calendar, 1681-1685, indicate clearly why legislation in 
the province came practically to a standstill in the spring of 1681, 
and the construction of a general body of laws to take the place of the 
laws of the time of the union and to enact seriatim a comparatively 
complete code, adapted to local circumstances, was abandoned. Doubt- 
less it Avas the intention of the representatives of the people in their 
General Assembly, at the time this government was inaugurated, to 
begin the formulation of such a body of laws and continue the under- 
taking until it was as fully completed as such a work ordinarily can 
be. The hostility of Mason, Chamberlain and Eandolph, as indi- 
cated by their correspondence, had become pronounced and aggressive. 
The prospect of a repeal of the commission was unmistakable. The 
General Assembly must have been aware of the fact that further efforts 
in general legislation were useless and impracticable. 

They had taken the precaution to re-enact their former laws and 
thus provision had been made for the conservation of public rights 
and, temporarily, at least, for the ordinary exigencies of private busi- 
ness and the administration of public affairs. 

Among the important subjects of legislation, which the laws of the 
time of Cutt and Waldron had not provided for, were those relating 
to the disposition of the estates of deceased persons, the laying out of 
highways, descent and distribution of estates of deceased persons, and 
a multitude of others which will be discovered by comparison of the 
titles in the laws of 1672 and those of 1680-1681. It must be con- 
cluded .as a question of law, as a question of reason and as a question 
of necessity that the local laws, under which the people were gov- 



Page 104, lines 31, 32, 33, read the following-, viz.: "to the laying 
out of highways, the settlement of the affairs of insolvent persons, the 
descent and distribution of estates of deceased persons, and others 
which will be noted by comparison of the" — etc. 



105 



erned at the time of the change of the political constitution over them 
in 1679 - '80, at all points and on all particular subjects upon which 
new enactments had not been made under the authority of the new 
political government, continued in force by the law of nations and 
ex necessitate rei, with the supplemental sanction of the affirmative 
act of the Legislature of the new government. Under the circum- 
stances which existed, the attempt to construct a new system of laws, 
which was made in the first year of the Cutt and Waldron government 
and which broke down, leaving the work unfinished, cannot be re- 
garded in any sense as a general revision or as any thing more than a 
fragmentary and abortive attempt upon such an undertaking. 

(2). The provision of the Cutt commission, which required the form 
of proceeding in courts and the judgments thereon to be given in con- 
sonance with and agreeable to the laws and statutes of the realm of 
England, having due reference to the state and condition of the people 
in the province and the circumstances of the place, was abrogated, 
by the king with the revocation of the Cutt commission. 

The order, which vacated the Cutt commission, is to be found at the 
end of the Cranfield commission, Bouton, supra, 443 ; Laws, supra, 56. 
The provision in regard to the laws and the statutes of England, as 
related to court transactions, was not renewed in the Cranfield commis- 
sion, but disappeared out of the form of government provided for the 
term of the administration of Cranfield and his deputy, Barefoote. 
The political government, which was constituted under the Cutt com- 
mission, existed only from the winter of 1679~'80 to the fall of 1682. 
It is*apparent that circumstances were not favorable to an affirmative 
and uncoerced adoption into the local municipal law of New Hamp- 
shire of those principles of the English common law which were relics 
of the feudal system and which governed the inheritance, tenure, trans- 
fer, ownership and management of landed estates in England. 

Judge Dillon, in his Yale Lectures, gives a timely reading from 
Sidney Smith's account of the workings of the English game laws, 
even down to a date more than a hundred years later than the period 
under immediate review. 

' 1 The game laws were horribly oppressive. For every ten pheasants 
which fluttered in the wood, one English peasant was rotting in jail. 



106 



Steel traps and spring guns were set all over the country: Prisoners 
tried for their lives could have no counsel. * * * Not a murmur 
against any abuse was permitted: To say a word against the suitori- 
cide, delays of the Court of Chancery, or the cruel punishments of the 
game laws, or any abuse Avhieh a rich man inflicted and a poor man 
suffered, was treason against the plousiocracy , and was bitterly and 
steadily resented." Lectures, p. 357. 

In this connection, too, what Judge Dillon says on page 356 of the 
same lecture should be re-read : 

"The land laws of Great Britain which to-day press Avith such 
heavy weight upon the agricultural classes, grew out of the feudal 
system. That system has never died at its roots in England. John 
Bright not many years ago declared that 'ancient, stupid and mis- 
chievous legislation embarrassed land in every step you take in dealing 
with it.' In England and Wales about five thousand persons hold 
nearly one-half the entire acreage ; in Scotland, less than one hundred 
persons own about one half, and less than two thousand about nine 
tenths of all the lands; and in Ireland, less than two thousand pro- 
prietors, many of whom are non-residents, hold two-thirds of the 
island. As a result of primogeniture, of entailed estates and family 
settlements, Great Britain is to-day a land of tenants.' 

"We have not, indeed, in this whole country wholly escaped from 
the complicated system of estates, which characterize the English law. 
We ought to be free from them. We yet shall be." 

The opinion of Ladd, a sturdy, independent and fearless New Hamp- 
shire judge, in Cole v. The Lake Company, 51 N. H. 287, may well be 
reviewed as a supplement to what Judge Dillon has said in regard to 
the vices of the laws governing landed property in England. 

The fathers understood this question, both in its practical and legal 
aspects, as well, perhaps, as the lawyers and publicists of the present 
day. They did not intend either to make or adopt laws from any source 
that would supplant or imperil their political, public or property 
rights, at least such as were in their actual possession and enjoyment. 

As already shown, the New England Puritans did adopt and ex- 
tract from Pulton's edition of the Statutes of the Realm, such parts 
of that collection as they deemed desirable for incorporation in a 
new system of statute law, adapted to the state of society, the condi- 
tions of the place, and the political and ecclesiastical principles of the 



107 



immigrants who had founded the colonies. It appears also in an ad- 
dress of the General Court to the king, of June 11,1680 (Bout on, supra, 
412), that the General Assembly of New Hampshire was then making 
use of a later edition of Pulton's Statutes of the Realm. This was the 
edition of 1670, edited by Manby. (Laws, supra, Introduction, liii.) 

The letter referred to describes the recourse which the assembly had 
to the Statutes of the Realm for material for the laws then in process 
of construction in the province. 

"According to your majesty's command, we have, with our genera] 
Assembly, been considering of such laws and orders as do, by divine 
favor, preserve the peace, and are to the satisfaction of your majesty's 
good subjects here, in all of which we have had a special regard to the 
statute book your majesty was pleased to honor us with for which, 
together with the seal of your province, we return most humble and 
hearty thanks. ' ' 

Acts of parliament, subsequent to March 24, 1606, have been held, 
over and over again, not to be operative in the colonies unless such 
purpose was specialty stated in the statute. It has also been held 
that, as respects the colonies, the statutes of date prior to March 24, 
1606, were to be regarded as lex non scripta. The account of the se- 
lection from such statutes that accompanied the compilation of the 
Cutt laAvs is suggestive. It aids materially in explanation of what 
the term "adoption" of the laws of England really meant as a term 
descriptive of what was being done in the selection and adaptation of 
the laws of the mother country for the codes to be put in operation in 
the new plantations. Evidently parts of the English statute law were 
adopted and incorporated in the New Hampshire law and may be 
identified in the Cutt laws. Other parts of the English statutes, which 
were adopted and incorporated in the statutes of the time of the 
union with Massachusetts, may be traced in the body of that law. The 
adoption of the laws of the time of the union by New Hampshire is 
evidence of an intention to take over the provisions of the English 
statutes incorporated in that collection. With these must be consid- 
ered the additions selected by the people themselves in the construc- 
tion of the Cutt laws. There is no evidence of an intention on their 
part in the time of the Cutt-Waldron administration, under the Cutt 



108 



commission, to adopt any more of the common or statute law of Eng- 
land than as is above clearly discovered, identified and specified. Out- 
side of these limitations there is nothing but speculation and assump- 
tion, and that, too, for the most part, absolutely unreasonable and 
groundless. 

(3). New Hampshire had at this time a decided preference for the 
laws of the time of the union with Massachusetts Bay, as far as a 
choice was permissible between them and the laws of England. 

The contemporary evidence on this point, emanating from both 
parties, is available. It has been published from transcriptions made 
from the colonial correspondence in the public record office in London, 
both in public and private imprints made in New England in the past 
twenty-five years. 

These papers disclose first the reports of Mr. Chamberlain, the 
colonial secretary, and his coadjutors in the party of Mason in 1681. 

In a letter to Blaythwaite, dated May 14, Mr. Chamberlain says : 

"I * * * first took exception to the whole system in general 
being collected mostly out of the Massachusetts laws (and surely it 
could not well stand with the mind and pleasure of his majesty that 
we here should cast off obedience to their jurisdiction and yet vol- 
untarily submit to and yoke ourselves so inseperably to their laws) and 
then because unnecessary the king having sent a great volume of laws 
copiously and accurately done to their hands. " # 

In a narrative of proceedings in New Hampshire, received and read 
in the privy council September 6, 1681, the following statement ap- 
pears : 

' ' They had made a - law to confirm the law of Massachusetts colony 
and the title of lands derived from that authority." 

These papers are given in full in 17 N. H. State Papers, 544, 547. 
Abstracts of the same documents are in Laws of N. H., supra, 786. 

In the second place the assembly, by a formal resolution of May 25, 
1680, express their sentiments towards Massachusetts in terms that 
cannot be mistaken. 

They say: 

* A copy of this edition is in the New Hampshire State Library. It is an interesting object 
lesson on the subject of the fitness and adaptability of the statutes of the realm to meet 
colonial conditions. 



109 



"The late turn of Providence made amongst us by the all ordering 
Being, hath given occasion for this present application, wherein we 
crave leave, as we are in duty bound. 

1. Thankfully to acknowledge your great care for us while we dwelt 
under your shadow, owning ourselves deeply obliged that you were 
pleased upon our earnest request & supplication to take us under your 
government & ruled us well whilst we so remayned, so that we cannot 
give the least coutenance to those reflections that have been cast upon 
you as if you had dealt injuriously with us. 

2. That no dissatisfaction with your government, but merely our 
submission to Divine Providence to his Majesties Commands, to whom 
we owe alleigance without any seeking of our owne, or desires of 
change, was the only cause of our complying with that present separa- 
tion from you that we are now under, but should have heartily re- 
joiced if it had seemed good to the Lord and his Majesty to have settled 
us in the same capacity as formerly." 1 Bouton, N. H. Province 
Papers, 410. 

About the time that the letters of Chamberlain were forwarded to 
the home government the president and council of New Hampshire 
were in communication with the king and with the committee on trade 
and plantations. In these letters they defended their laws as being 
satisfactory to the people of the province, as suitable to their circum- 
stances and as not repugnant to the laws of England. These repre- 
sentations are clear in argument and serious and dignified in their 
general tone. It is probable that they had weight with the king and 
council when considered in comparison with the criticisms of the 
Masonian claimants, which were manifestly neither disinterested, un- 
biased, nor conservative in the presentation of facts and argument. 

One fact is certainly apparent and unmistakable upon the evidence 
of these records and that is that the usages and customs, which had 
prevailed in the time of the union and from the beginning of the set- 
tlement, as indicated by their former laws and liberties, repeatedly 
declared and now again approved by this new government, were not 
to be abandoned or repudiated. 

The governor and council say, in the communication of May 7 (17 
State Papers, 541-543; Laws, supra, 785), as follows: 

"And first as to civil matters, we humbly refer your lordships to 
the view of our laws, and of our acts and orders, which we from time 



110 



to time have made and passed (and now sent) since the arrival and in 
pursuance of his Majesty's gracious and royal commission: There 
being little of note, and worthy to be communicated to your lordships 
relating to that general head, but what is to be found among these 
laws, acts, orders, and entries all of which we find very satisfactory 
to the people and conducting much to their peace and quiet. ' ' Laws, 
supra, 785. 

A communication, addresed to the king, May 31, the council of 
New Hampshire say : 

"We have alsd framed several laws and constitutions (a copy 
whereof we here with all send) without any repugnancy to, and in as 
great an indentity to and consonancy with your majesty 's laws as our 
abilities would reach, and as we thought most suitable to our circum- 
stances, in obedience to which your majesty's subjects have hitherto 
peaceable an4 to their good satisfaction demeaned themselves, not 
doubting but if your majesty with the advice of your most honorable 
Privy Council see meet to confirm them they will through God's bless- 
ing attain the ends proposed in your Majesty's Commission of keep- 
ing the people in a right understanding of and submission to your 
Majesty's royal authority, the suppressing of vice and encouraging of 
virtue * * " * " Laws, supra, 786; 17 N. H. State Papers, 551- 
555. 

In the argument, further on, under a separate title, the demonstra- 
tion of a proposition that the Cutt laws were never repealed by the 
king or privy council will be undertaken. If this contention shall 
appear to be established, it will doubtless, also, be concluded that the 
claim of the president and council of New Hampshire that their laws 
were not repugnant to* the laws of England in any important or sub- 
stantial sense met with the approval of the king in his ultimate dispo- 
sition of the subject. 

(4). The language of the first paragraph of the text of the com- 
mission is significant as to several important questions now under 
consideration. 

"Whereas," the instrument recites, "Our colony of the Massachu- 
setts, alias Massachusetts Bay in New England in America, have taken 
upon themselves to exercise a government and jurisdiction over the in- 
habitants and planters in the towns of Portsmouth, Hampton, Dover 
and Exeter, and all the other towns and lands in the Province of New 



Ill 



Hampshire, lying and extending from three miles northward of Merri- 
mack River, or any part thereof unto the province of Maine, not hav- 
. ing any legal right or authority so to do, which said jurisdiction and 
all further exercise thereof we have thought fit by the advice of our 
Privy Council to inhabit and restrain for the future; and do hereby 
inhibit and restrain the same : 

1 ' And whereas the Government of that part of the said Province of 
New Hampshire so limited and bounded, as aforesaid, hath not yet 
been granted to any person or persons whatsoever, but the same re- 
mains and is under our immediate care and protection : 

"To the end therefore," etc.* 1 Laws of N. H., 1679-1702, p. 2. 

Conclusive evidence is afforded in this part of the commission to 
establish the following propositions : 

(a). The cle facto government, previously existing in New Hamp- 
shire, is recognized, and its de jure establishment only is denied. 

(&). The continuance of that government "in the future" is inhibi- 
ted, but no repeal of any legislative, municipal, judicial or administra- 
tive acts affecting the territory, property or people of New Hamp- 
shire by authority of the previously existing de facto government is 
declared or even suggested. 

(c) . It is made to appear by the terms of this instrument that the 
king asserts the right of government over this territory and its people 
as being in himself and he asserts that the government of the province 
has not been delegated to any person or persons whatsoever. This 
declaration would tend to negative the claim predicated in favor of 
John Mason and his successors under the instrument dated August 
19, 1635, and which indicated a royal purpose to vest powers of gov- 
ernment in Mason for his territory in New Hampshire. 29 N. H. 
State Papers, 69. The king's announcement in this connection is 
consistent with the theory of colonial jurisdiction exclusively in the 
king under his prerogative. F. B. Sanborn's History of New Hamp- 
shire, pp. 11, 13, 15 ; 1 Bouton, N. H. Prov. Papers, 37. 

(d) . This preamble also disposes of the proposition that the govern- 
ment, exercised by the union of Massachusetts Bay and New Hamp- 
shire from 1641 to 1679, only related to the New Hampshire towns 

* Italics employed in this quotation are not found in the original text, and the archaic 
spelling has not been followed in the transcript. 



112 



then inhabited. The king's pronouncement is that this government 
and jurisdiction had been exercised, not only in the four towns, but 
also over ' ' all the other towns and lands in the province, ' ' lying north 
of the Merrimack River and to the province of Maine, etc. It must 
follow from this state of jurisdictional facts, as recited in the com- 
mission, that the laws of the united colonies of New Hampshire and 
Massachusetts Bay, enacted between 1641 and 1679, extended not 
merely over populated New Hampshire, but over all of territorial New 
Hampshire, as well as the inhabited parts.* 

(5). The part of the united colonies, which was severed as a result 
of the king's orders contained in the Cutt commission, and which thus 
became the province of New Hampshire, according to the national law 
already herein quoted, was not deprived of its existing municipal law. 
Its paramount political government was entirely changed, but not its 
municipal law. All the authorities are concurrent to this conclusion. 
(Pages 34-40, ante.) 

This municipal law thus remaining in force and valid to all in- 
tents and purposes, not inconsistent with the exercise of the political 
functions incident to the government, is necessarily a continuing sys- 
tem until it is repealed or abrogated by competent authority in its en- 
tirety or in part and piecemeal from time to time. The subsequent 
repeal or amendment of particular provisions or parts of such a body 
of laws does not affect the continuing validity of other parts not re- 
lated to those that may have been repealed or amended. The theory 
that statutes become obsolete by disuse has little sanction in the au- 
thorities. Potter's Dwarris on Statutes and Constitutions, Ed. 1871, 
p. 154. Repeal by implication is not favored. Endlich on Statutes, 
par. 210. Moore v. Taylor, 44 N. H. 370, 373. Currier v. R. B. Co,, 
48, Id., 321, 329. Purrington v. Ladd, 58 Id., 596. The same rules 
apply to the repeal of the common law by implication. State v. Wilson, 
43 N. H. 415, 419. 

The rules which constitute the law of repeal by implication are 
discussed in all the standard works on statutes and constitutions and 
are familiar elementary doctrines. It is not necessary to elaborate 

* Twenty-eight towns, including the Isles of Shoals as one now, occupy the same territory 
as was within the four original towns. 



113 



them. A very recent work on this subject, Lewis' Revision of South- 
erland on the Law of Statutes and Constitutions, presents the follow- 
ing statement of the rules, the substance of them only being here re- 
peated. 

(a). Suspension is not a repeal. 

(6). Non-user will not effect such a repeal nor will it result from 
the existence of custom conflicting with the written law. 

(c) . Implied repeals are not favored and are only allowed to the 
extent of actual repugnancy. 

(d) . Statutes are not repugnant to each other unless they relate to 
the same subject. 

(e) . The presumption is against implied repeal and courts en- 
deavor to harmonize statutes. 

(/). Repeals by implication are not favored and will be avoided 
by the courts if possible. 

(g) . No repeal results by implication by the passage of statutes of 
limitation. 

(h) . Repeal by implication does not result from the fact that acts 
are different; they must be contradictory. 

( i) . Repugnancy in principle or spirit is not sufficient to effect a 
repeal by implication. 

In the period intervening from 1679 to 1791, there had been no 
general revision of the statute law of New Hampshire. 

The legislation under the Cutt commission, to the extent to which 
it had proceeded when it was abruptly ended in 1681, for reasons 
elsewhere stated, was not a revision because (1) it was but a frag- 
ment of the construction of a body of laws which was evidently in- 
tended, and (2) it could only be treated as a complete system in the 
ordinary sense in which general revisions are regarded, by giving full 
effect to article 11 of the second part, incorporating the laws of the 
time of the union, as far as they were not inconsistent or repugnant 
to the new laws, as sufficient for a working system of statute law. 
In such a body of laws the ordinances of 1641, 1647, "would be in- 
cluded. 

The laws enacted in the time of Cranfield were a fragmentary part 
8 



114 

of what was possibly intended as a more general system or body of 
laws for the province. Laws, supra, 807. 

Only a partial development of a system of statute laws for the Do- 
minion of New England in the time of Andros was accomplished 
before the Revolution of 1689 overtook the undertaking. Laws, supra, 
142. 

New Hampshire collections of 1716-1726 were manifestly nothing 
more than a compilation out of the existing body of the statutes. 
These acts only which were the most convenient and needful for cur- 
rent reference were printed in these publications. 

The same description applies to the compilations made in 1771 and 
in the time of the Revolution. 

It is pertinent to these comments to mention a work which appeared 
1761, or which is assigned to that date. The Comments of Albert H. 
Hoyt, who is recognized as a very high authority on the history of 
the Statute Law of the Province of New Hampshire, speaks of this 
undertaking as follows : 

"During the next fifty years [subsequent to 1716] .frequent at- 
tempts were made to obtain a revision of the laws, but nothing was 
accomplished till 1761. In that year Meshech Weare, — a name soon 
afterward most honorably connected with the legislative, judicial, and 
administrative history of the Province of the State, — was a member 
of the committee on the laws. This committee reported a revised 
draft in print. It does not appear that the report was accepted, or 
acted upon in any particular ; and it is reasonable to suppose that this 
revision did not meet the demands of the Assembly. A few copies 
of this report have been preservd. This edition was not deemed 
authentic," Notes, Historical and Bibliographical, on the Laws of 
New Hampshire, by Albert H. Hoyt, 1876, p. 12. 

Whenever there has actually been a general, comprehensive and ex- 
haustive revision of the statute law of a state, the question of implied 
repeal of statutes, whose provisions are covered in to the revision and 
those whose provisions are entirely omitted, is always an open one 
to be considered in each instance according to all the circumstances 
from which the intention of the Legislature may be ascertained. 
. Assuming, then, that in the provision of municipal law the gov- 
ernment of all the territory included, as the king describes it, in 



115 



New Hampshire territorially considered, as well as for Massachusetts 
Bay in its more restricted bounds, a valid system of local laws, for the 
regulation of property rights and the relation of the inhabitants 
among themselves had been provided by a de facto government ade- 
quate to that purpose, the next question for consideration relates to the 
disposition of that body of laws upon the termination of the union. 

XV. 

THE ARGUMENT RELATIVE TO THE REPEAL OF THE 
CUTT LAWS PREDICATED ON THE RECORD EVIDENCE, 
KNOWN TO THE COURTS AND LAWYERS IN NEW HAMP- 
SHIRE IN A PERIOD OF MORE THAN A HUNDRED AND 
FIFTY YEARS PRIOR TO AUGUST 1, 1905. 

The General Assembly, under the Cutt commission, enacted a body 
or code of laws. 

It has been said that this body of laws was abrogated in toto by the 
king in council. Political Annals of the Present United Colonies, by 
George Chalmers, 1780, Vol. 1, p. 493. 

All the authorities predicate this assertion on the fact that a rec- 
ommendation for the repeal of these acts was entered in the Journal 
December 23, 1681, by the Lords' Committee for Trade and Planta- 
tions. There is, however, no record in the English archives nor in the 
state archives of a decree of the king on this subject. Without such 
a decree, formally executed by the king, the recommendation of the 
Lords' Committee on Trade and Plantations could have had no effect 
whatever upon the laws which were the subject of its strictures. A 
report of date, July 19, 1706, of a similar character by the board of 
trade upon a series of New Hampshire laws, which had been before 
them, is printed in the appendix to 1 Laws of N. H.,« 1677-1702, pp. 
860-863. This report and recommendation, without further action 
by the queen with reference to the same subject-matter, would have 
been absolutely ineffectual. In this instance, that is to say, in the case 
of the laws passed upon in 1706, the report was succeeded November 
19, 1706, by a formal decree by the queen in council, duly authenti- 
cated and entered in the records of the privy council. 1 Laws of 
N. H., 1679-1702, appendix, pp. 866, 867. It is the absence of any 
decree of the king, adopting the report of the Committee on Trade and 



116 



Plantations, that is the controlling consideration in the premises, that 
is, in reference to the disposition of the Cutt laws. There is no record 
evidence that any such decree was ever executed by the king with 
respect to the extant laws of the time of John Cutt's presidency. 

The royal commission for the establishment of the Cutt government 
contained the following provision relating to the procedure necessary 
to accomplish a repeal of the laws enacted by the province General 
Assembly, which had force and effect in the province: 

"Such Acts, Laws and Ordinances, * * * shall stand and be 
in force until the pleasure of us, our heirs and successors, shall be 
known, whether the same laws and ordinances shall receive any change 
or confirmation or be totally disallowed and discharged. ' ' 1 Laws of 
N. H, 1679-1702, p. 6. 

It should be remarked at the outset that in Fortescue's Calendar 
(cited post), an English official publication accessible now in the prin- 
cipal American libraries, all the documents of 1681, 1685, in the Eng- 
lish archives relating to the subject immediately under examination 
are presented in full or in adequate abstracts. 

There is no evidence tending in any way whatever to prove or in- 
dicate that a disallowance of these laws was ever published in the col- 
ony or in any way or to any extent made known to the people or to 
the officials. 

The same absence of evidence of information as to the repeal of N 
certain acts of the period between 1692 and 1702 is a factor in the 
history of the last-mentioned statutes. The province records contain 
no evidence of the repeal which occurred in December, 1706, though 
it was unquestionably a fact, according to the records of the privy 
council in England. The judiciary act of 1699 was one of the acts 
so repealed, but, as to which, information was not officially published 
in the province. This act, as well as others, which had been appar- 
ently the subject of the queen's disallowance, was continued in all the 
subsequent local publications of the province laws as a valid enactment. 

The home government was informed of the continuance of these acts 
as the recognized law of the province, as the printed editions of the 
laws, including the ones in question, were duly forwarded to the co- 
lonial department of the home government, and have remained to this 
day in the English colonial archives at London. 1 Laws of N. H., 
1679-1702, lxxxviii ; Id., notes, pp. 638 and 859. 



117 



It is made prominent in the commissions from that of Allen (1 Laws 
of N. EL, 1679-1702, p. 504) to that of John Wentworth (Laws of 
N. H., Ed. 1771, p. 4) that a disallowance by the king or queen in 
council could be effective only when it had been signified to the gov- 
ernor under the royal sign manual and seal, or by order of the privy 
council. 

The substance of the same rules appear in the commissions of Cutt, 
Cranfield and Andros. 

Early in 1675 Charles the Second dissolved the Council of Trade and 
Plantations, doubtless another name for the Council for Foreign 
Plantations ; and on March 12, 1675, all business relating to the colonies 
was committed to a committee of the privy council. Five members 
were to constitute a quorum. They were to hold weekly meetings and 
report from time to time to the king. This committee exercised about 
the same authority as the committee of thirty-five (Council for For- 
eign Plantations, 1660~1675), but in 1696 a board of trade was ap- 
pointed. It was to the Committee on Trade and Plantations that 
the New Hampshire Laws, known as the Cutt Code, were submitted 
for examination. 1 Laws of New Hampshire, 1679~1702, Introduc- 
tion, p. xlvi. 

The Colonial Entry Book contains minutes of this Committee for 
Trade and Plantations, constituting their journal. It is now accessible 
in the Public Record Office in London. In Vol. 106, p. 332, Calendar 
of State Papers, Colonial series, Am. and W. I., 1681-1685, Fortescue, 
sect. 346, p. 174; sect. 361, p. 182, under the title, Be Acts of Assembly 
& Orders of New Hampshire Council, the following entry appears in 
the journal: 

"Several Acts of Assembly and orders of Council received from 
New-Hampshire the 20th of September last are read, and their Lo'ps 
being dissatisfied both with the stile and matter of them, will offer 
to his Ma'ty that they may bee wholly rejected, and that the same 
method bee used in passing of Laws in that Province as in other his 
Ma 'ties Planta'ons, and that the Laws of England bee in force, ex- 
cept where any particular circumstance of the Place shall require 
any alteration which is to bee provided for by particular and sub- 
sidiary Laws. 

"And whereas the people in New-Hampshire have taken upon them 



118 



to dispose of and confirm Lands to themselves, their Lo'ps think fit 
that all Laws to that effect bee set aside and that the determination 
of all Titles of Land bee reserved to His Ma'ty. 

"Upon the whole matter their Lo'ps agree to Report to his Ma'ty 
that the proceedings of the Government in New Hampshire have been 
soe irregular that it will bee necessary that some person bee sent by 
his Ma'ty to settle the Country, with such Commission and Instruc- 
tions as are usually given to other Governors. ' ' 

The entry above quoted is also printed in 1 Laws of N. H., 1679-1702, 
p. 45. 

Accompanying the transcript, as printed in the volume of New 
Hampshire laws, above cited, was an editor's note, which was as 
follows : 

"The foregoing recommendations from the Lords Committee on 
Trade and Plantations are so explicit and unequivocal, and are so 
fully comprehensive of all the acts transmitted by the Cutt adminis- 
tration in New Hampshire that the presumption must be held very 
conclusive as to the fate of the so-called Cutt Code with the royal 
authority having final disposition of the subject. This formal order, 
however, if transmitted to the province authorities, has not been pre- 
served, and the local record of it with officials were not seasonably 
informed as to the repeal of the Cutt Code by the home government, 
and if so this might account for the apparent absence of records of im- 
portant legislation in the time of Waldron's administration." 

This memorandum was written and printed before the editor was 
aware of the existence of the document, dated January 13, 1681~'82, 
which is given in full on a succeeding page (786), and it is manifestly 
proof of a complete change of plan relative to New Hampshire be- 
tween December 23 and January 13. 

This is not the only available illustration of the facility with which 
a reader, editor, or commentator may be misled by the entry in the 
Journal of December 23. The indexers of Fortescue's English "Cal- 
endar" (elsewhere cited), on the basis of that record and without ref- 
erence to the report of January 13, make the index clause for the entry 
of December 23, read: 

"New Hampshire, General Laws and Liberties of, the whole of 
them disallowed." P. 811. 



119 



Within three weeks from the date of the entry in the Journal of 
December 23, the committee, by some means, had been convinced that 
a change of policy was advisable with respect to the government and 
laws of New Hampshire. Evidently this fact, if known to the indexer 
of the English Calendar, p. 811, had been overlooked, as the action of 
the Committee on January 13, must necessarily be regarded as super- 
seding that of the previous December 23. 

This later document is as follows: 

"Wee have under our consideration the State of your Ma 'ties Prov- 
ince of New Hampshire in New England which has been lately Seper- 
ated from the Colony of the Massachusetts Bay and is now governed by 
a President and Councill nominated and appointed by Your Ma 'ties 
Commission dated the 18 (?) of September, 1679. Wee have alsoe 
perused Severell Letters, Orders of Councill, And Acts of Assembly 
lately received from that place, whereby it appears to us that some 
persons now in 'the Government there, have carried on and abetted 
diverse irregular proceedings which are in noe manner consistent with 
Yo'r Ma'tys Service and the intended Settlement of that Province. 
And wee doe likewise find the Public Acts and orders (the most part 
of them) soe unequall incongruous and absurd, and the methods 
whereby the Councill and Assembly have proceeded in the establish- 
ment of the Same Soe disagreeable and repugnant to the powers and 
direction of Your Ma 'ties said Commission that Wee cannot hope for 
Such a Settlement and regulation of Officers in that Province as their 
dependence on Your Ma 'ty and welfare of the peace doe require unless 
your Ma'ty shall appoint Some fit and able person of whose fidelity 
and Sufficiency Your Ma'ty is well assured, who may be authorized 
and impowered by Your Ma 'tys Commission and Instruction, to Settle 
that place under such kinds of government and Laws as are necessary 
for the regulation and improvement of that Province. Which Wee 
humbly offer to yo'r Ma'ty as the best means to prevent all farther 
irregularities and to render that place as well usefull to the Crown 
as able to defend it self from the attempt of the Natives or any For- 
eign Invasion all which &c. " 

' ' Craven, Clarendon, 

' ' AlLESBURY, FaUCONBERG, 

"L. Jenkins, Edw Seymour. 
"Councill Chamber, 13 Janry, 1681." 



120 



1 Laws of N. H. ? 1679-1702, Appendix, pp. 786, 787. 

By reference to the Calendar of State Papers, Colonial Series, 
America and West Indies, 1681-1685, Preserved in His Majesty's Pub- 
lic Record Office, edited by the Hon. J. W. Fortescue and published 
by authority of the lords commissioners of her majesty's treasury, 
under the direction of the Master of the Rolls, 1898, p. 181, section 
360, under date of January 12, 1682 (N. S.), it will be seen that the 
report of date, January 13, before mentioned, was accepted and the 
action of December 23 formally superseded. 

The entry is as follows : 

"Report concerning the government of New Hampshire read and 
approved." The report referred to is the one of January 13, and an 
abstract of it follows on the next page of the ' ' Calendar, ' ' above men- 
tioned. 

Mr. Chalmers, the loyalist historian, whose work on the United 
Colonies was published in London in 1780 in the period of the Amer- 
ican Revolution, one hundred years after the events relating to the 
New Hampshire laws of the time of Cutt now under consideration, is 
understood to have had access to the original records, of which the 
above transcripts have been presented. His narrative states that ' ' all 
the laws passed under its authority (i. e., the Cutt Commission) were 
revoked. ' ' 

His full text on this subject, Political Annals, pp. 492, 493, is as 
follows : 

' ' When, however, they [that is, the General Assembly of New Hamp- 
shire in the time of Cutt] did fome time after effay their legiflative 
talents, they had not the good fortune to pleafe. The laws which 
they tranfmitted, in conformity to their conftitution, were dif approved 
of by the lords of the committee of plantations, in December, 1681, 
'both as "to ftile and matter," ' becaufe they were confidered 'as 
unequal, incongruous, and abfurd. ' The act, which, in the true f pirit 
of felfithnefs, confirmed to the inhabitants the titles to their lands 
without the confent of the proprietary, was juftly difallowed. Com- 
plaints were at the fame exhibited againft thofe who had acquired pre- 
eminence fubfequent to the death of Cutt, who was allowed to have 
been an 'honeft man and a loyal fubject, ' as favouring too much 
ancient principles of government, as oppofing the operations of the 



121 



acts of navagation. The fame committee reported: That various ir- 
regularities had been carried on by thofe at prefent in the govern- 
ment, which were neither confiftent with the king's fervice nor with 
the intended fettlement of the province, which precluded hope of fuch 
a regulation of affairs as their defendence and the welfare of the place 
acquird. And thefe were deemed fufficient reafons, becaufe they 
were founded in truth, for putting an end to an adminiftration which 
had fhewn fo little inclination to promote the views of thofe who had 
given it birth. The ftatefmen of thofe days lamented, that they had 
put truft in men, who only acted according to their principle when 
they [sic] oppofed the laws and government of England. 

"In order, therefore, to prevent farther irregularities, it was deter- 
mined, in the beginning of the year 1682, to appoint 'an able perfon 
and of tried fidelity to fettle that place.' And Lionel [Edward] 
Cranfield was foon after appointed lieutenant-governor and admiral 
of New-Hampfhire during pleafure. His commiffion was nearly the 
fame as thofe of other royal governors; his inf tractions were copied 
with little variation from thofe given to the chief rulers of Virginia; 
And the form of government now eftablifhed was exactly the fame 
The governor and council were morever empowered to continue the 
collection of former taxes, for the fupport of government, till others 
fhall be raifed by the affembly. The governor was alone authorifed 
to appoint cuf tom-houf es ; to cauf e every one to obey the acts of navi- 
gation; to nominate the clerks of the affembly. And not only was 
the former commiffion revoked, but all laws paffed under its author- 
ity were annulled : Giving for a reafon, what fhewed the extent of the 
dif approbation of the prince; 'that others more fuitable to the dig- 
nity of government might be enacted.' The proprietary, who had fur^ 
rendered the fines and forfeitures for the fupport of government, 
was now placed at the head of the council, was enabled to choofe two 
burgeffes for the affembly : and the Governor was required to adjuft, 
if poffible, the differences between him and the people, in order that 
he might be reftored to his right, and they to peace. The other colo- 
nies of New-England were informed of the appointment of a royal 
governor for New Hampshire, and commanded to give every aid to 
this province, in cafe it fhould be attacked. And fuch was the form of 
government, fuch were the inftructions, which a governor, without a 
f alary, without power, and without a friend, was appointed to fupport 
and to execute ! ' ' 

This statement is supplemented by a note which is numbered 36 and 
is found on pp. 508, 509 of the first volume of Chalmers' History. 



122 



This note gives the text of the report of the Committee of the Privy 
Council on Trade and Plantations of date January 13, 1681-82, above 
reproduced, and other authorities, none of which sustain the assertion 
as to the actual repeal of the Cutt laws by the king in council. Ap- 
parently Mr. Chalmers is much given to the fortification of his narra- 
tive by the quotation and citation of authorities. The absence of any 
reference to a record of the king's alleged order repealing the New 
Hampshire laws is quite suggestive of the probability that he found 
no such record. Indeed, it is almost inconceivable that, despite all 
the safeguards that surrounded the archives of the kingdom in the 
public depositories in England, especially in the last one hundred and 
twenty-five years or one hundred and fifty years, and despite the ap- 
parent absence of motive for the destruction or removal of such 
ancient records, there should be any different material available for 
examination in 1780 and 1904. 

If Mr. Chalmers examined no other part of the record but the omi- 
nous journal entry of December 23, he might naturally have been mis- 
led and could easily "jump to his conclusion" from those premises, as 
others have done. He, however, did reproduce, and therefore must 
have seen, the later records containing the report dated January 13 
and the action of the Lords' Committee on Trade and Plantations of 
date January 12, by which they formally adopted the report. Calen- 
dar, before cited, section 360. 

It may be well at the outset to recall Mr. Belknap's reference, 
(Farmer's Ed. Preface, p. xii) to Mr. Chalmers' animus towards New 
Hampshire, as indicated by the last paragraph of his account of the 
province in the first volume of the Annals. Mr. Chalmers says, p. 498 : 

"As New Hampshire had [in 1691] no patent to resume, it waited 
patiently for its fate from the wisdom of William. And, being ex- 
cluded by this monarch from the charter granted to Massachusetts, it 
has continued to the present time [1780] a different, though inconsid- 
erable settlement; 'irregular, as we are assured,' and factions in its 
'economy, affording no' precedents that may 'be of exemplary use to 
other colonies.' " 

There is abundant evidence in Mr. Chalmers' narrative of his de- 
cided bias against the Puritan majority of the New England colonists. 



123 



His state of mind towards New Hampshire indicates a pronounced 
dislike of its people, and the onesidedness of an advocate in respect to 
Mason's interests and contests with them. This Masonian party was 
the one which harassed the settlers and their successors in occupancy 
of the lands covered by John Mason's patents during a period of 
nearly a hundred years. These claims, whether prosecuted by the 
heirs of Mason or by the Aliens, the grantees of the Masons, so impar- 
tial an authority as Governor Bellomont in 1699 pronounced "an 
abomination and a mystery of iniquity." 1 Laws of N. H., 1679-1702, 
introduction, p. xliv. 

The next question is whether Mr. Chalmers was an accurate and 
reliable historian in fact in his treatment of events related to the prov- 
ince of New Hampshire in the time of the Cutt and Cr airfield "adminis- 
trations. 

Mr. Belknap has shown that he was untrustworthy in a number of 
instances, so many that they are conspicuous and suggestive in so 
brief a chapter as he devotes to this period. On page 192 of his first 
volume, Mr. Chalmers says: 

"They" (/. e., the president, council and assembly under the Cutt 
commission) "were extremely slow in conforming to present requisi- 
tions, and passed no laws during the first session. ' ' 

The province secretary was Elias Stileman. Chamberlain, his suc- 
cessor, a radical loyalist and an avowed partisan of Mason, had a 
copy which presumably passed into the English archives. This last 
point, however, may not be certain. 19 N. H. State Papers, 651-686. 

The fact was, as shown by the record, that a part of the Cutt Code 
was enacted at the first session, viz., articles from 1 to 15. I N. H. 
Laws, 1679-1702, pp. 11-29. See, also, Journal in 19 N. H. State 
Papers, p. 662, where it is written that at a General Assembly held at 
Portsmouth the 16th day of March 1679- '80, "sundry Laws and ordi- 
nances made at this session and are in another book for that purpose." 

If Mr. Chalmers saw this record he knew his statement was untrue. 

Note.— The manuscript of a continuation of Chalmers' Annals was published by the New 
York Historical Society in a recent period. The preface contains a eulogistic notice of Mr. 
Chalmers, but a severe arraignment of this writer appears in the North American Review^ 
No. lxx, January, 1831, p. 179. 



124 



If lie never saw the record he stated that to be a positive fact which he 
did not know was the fact. 

On page 691 of his first volume Mr. Chalmers, speaking of the first 
council of which President Cutt was the head, says : 

"They refused to take the accustomed oaths as the English law re- 
quired, because liberty of conscience was allowed them. ' ' 

The province record of Mr. Secretary Stileman, on the contrary, 19 
State Papers, p. 655, states as follows: 

"January 21, 1679-80, His Majesty's Commissioners, nominated in 
said commission, took their respective oaths as mentioned in said com- 
mission. ' ' 

For further comments on the numerous gross instances of careless- 
ness or patent misstatement, see Mr. Belknap's preface to the second 
volume of his History of New Hampshire, Farmer's Ed., pp. viii~xii. 

Mr. John M. Shirley, who was for many years reporter of Supreme 
Court decisions in this state and an accomplished student of the early 
history of New Hampshire law, devoted considerable space to this sub- 
ject in his monograph on "The Early Jurisprudence of New Hamp- 
shire" (New Hampshire Historical Society Proceedings, Vol. 1, p. 
285, et seq.; separate pamphlet, 1885, p. 55, et seq). Upon a con- 
sideration of the improbability and unreasonableness of Mr. Chalmers' 
assertions as to the repeal of the Cutt laws, Mr. Shirley repudiates 
that author 's statement. Mr. Shirley is the first of the modern writers 
on the subject to challenge the reliability of the dictum of Mr. Chal- 
mers, which has received wide acceptance among historians and legal 
writers, all of whom have assumed that there were records in the 
English archives that afforded proof of the fact alleged. Mr. Shirley 
saw with the eye of a specialist that the alleged repeal of these laws by 
the king was not consistent with the indubitable facts of this episode 
in the history of New Hampshire. 

Col. Albert H. Hoyt, one of the best authorities on the history of 
the province laws of New Hampshire, is also of the opinion that the 
Cutt Code, so-called, was never in fact repealed by the king or privy 
■council. 

It was in immediate connection with these numerous instances of 



125 



historical error or perversion, resulting, presumably, from inadequate 
investigation rather than intentional misstatement, that the author 
makes his assertions in regard to the alleged disallowance of the Cutt 
laws in toto by Charles II. Moreover, he puts a part of it in quota- 
tion, but while he is, as a rule, liberal in the citation of authorities 
and in utilizing abstracts and transcriptions from them, he cites no 
authority for his quoted clause. 
He says, Annals, Vol. 1, p. 495 : 

"And not only was the former Commission" (Cutt's) "revoked but 
all laws formed under its authority were annulled ; giving for a reason 
what showed the disapprobation of the prince ; ' that others more suit- 
able to the dignity of government might be enacted.' '.' 

On the question whether this records a historical fact or is merely a 
mistake or misstatement that has led to a general misconception of what 
actually transpired, it is necessary to examine the subject further 
than has already been done in the preliminary comments, which dis- 
close the unfriendly animus of the author towards New Hampshire 
and his habits of inaccuracy and unreliability in narration. 

1. The account given on pages 492 and 493 of the Annals, presents 
internal evidence of the author's misconception of his facts. It wil] 
not be forgotten that he was writing nearly a hundred years after the 
events, of which he was treating, had occurred. 

He said, on page 493, that all the laws passed under the authority of 
the Cutt commission were annulled. 

He said, on page 493 : ' ' The act, which in the true spirit of selfish- 
ness, confirmed to the inhabitants the titles to their lands without the 
consent of the proprietary, was justly disallowed. ' '*' 

This refers, evidently, to the New Hampshire General Laws, time of 
Cutt, section [1] (1 Laws of N. H., 1679-1702, p. 23), and his comment 
was possibly based on an entry of date November 10, in the journal of 
the Committee on Trade and Plantations, in which it is advised that 
this particular act, section 1 of the Cutt general laws, should be re- 
pealed, but the records of the privy council disclose no evidence of a 
repeal in fact. 

*The reply of the Council of the Province to the complaints of Mason and Chamberlain is, 
printed in full in 17 N. H. State Papers, 551-555. 



126 



The first suggestion presented by the contradictions of the text re- 
lating to appeals is that if all the Cutt laws were annulled, it would be 
absurd to disallow a particular one of the same collection or group of 
acts. It is undeniable, having reference to the reason, probabilities 
and, indeed, the possibilities of the situation, that if all the laws had 
been annulled en bloc, as Mr. Chalmers declares in his page 493, in 
addition to that, a tribunal, proceeding with all the formalities and 
technical precision that we may presume attended the conduct of the 
business of the privy council of England, would take a single act, con- 
stituting a part of the series of acts already repealed, and strangle 
that by itself. This would certainly seem to be unreasonable, if not 
impossible. 

In this part of his narrative, what did Mr. Chalmers have in mind? 
In response to the query that naturally arises touching this feature 
of the subject, it may be observed that a similar act was passed in the 
time of Lieutenant-Governor Partridge's administration in 1701. It 
was almost identical with section one, General Laws, time of Cutt, 
aboA T e cited. The Partridge act was entitled "An act for the Con- 
firmation of Town Grants." The title to the earlier act was "Town- 
ships, etc., Confirmed." From 1786 to 1825, the year of his death. 
Mr. Chalmers was chief clerk of the Committee of the Privy Council 
for the consideration of all matters relating to trade and foreign plan- 
tations. Annals, Vol. 2, preface, p. 1. If Mr. Chalmers had seen the 
record of the act of 1701, time of Partridge, and had noted that it was 
repealed by the queen in council, November 11, 1703, which was the 
fact, it would be entirely consonant with his unreliable and misleading 
method of treating affairs that were subject of record to confound 
what was done with the Partridge act with a suppositious disposition 
of the Cutt act on the same subject, 1 Laws of N. H., 1679-1702, p. 
693. However the statement was occasioned, it is manifestly wrong 
and one assertion or the other, — the one as to the single act or the one 
as to the whole body of the Cutt laws, — must be rejected. 

2. The only official record relating to the deliberations of the Com- 
mittee of the Privy Council on Trade and Plantations extant (as far 
as the representations of the New Hampshire department for the pub- 



127 



lication of state papers have been able to ascertain) are, first, the en- 
tries in the journal of the committee for November 10, 1681 (1 Laws of 
N. H., 1679-1702, p. 45, Fortescue's Calendar, section 287, which is a 
recommendation for the repeal of article 1 of the Cntt laws), and those 
for December 23, 1681, and, second, the journal entry of January 12, 
1682, and the report of the committee submitted to the king in council, 
January 13, 1681- '82. 

The important question to be elucidated is not whether the act about 
the confirmation of grants of lands in the Cutt laws was repealed, but 
whether the action of the committee indicated by their preliminary con- 
clusions as evidenced by the journal entry, and the later report ever 
resulted in the repeal of the Cutt laws in toto. 

An analysis of the journal entry of December 23 discloses the fol- 
lowing conclusions or suggestions, apparently adopted by the com- 
mittee.*' 

They will recommend : 

(1) That the wmole body of the Cutt laws be rejected. 

(2) That the same method be used in passing laws in New Hamp- 
shire that are employed in the other provinces and colonies. 

(3) That the laws of England be put in force as the principal oper- 
ative and efficient code or body of laws, except that in case some par- 
ticular circumstances of the place — that is, the province — shall require 
an alteration of the laws of England that shall be provided for by par- 
ticular and subsidiary laws to be enacted presumably by a local legis- 
lative body in the province. 

(4) That the confirmation of lands to themselves by the colonists 
contrary to the title and interests of the Masonian proprietory by local 
laws should be disaffirmed and that subject relegated to the. determina- 
tion of the king. 

(5) That a new political government should be provided for the 
province. 

It is quite evident that a disposition on the part of a majority of 

* The clerk of this committee was Mr. Blathwait. Of him Mr. F. B. Sanborn, History of 
N. H., p. 76, says: "Mr. Blathwait was the long-standing and well-skilled clerk of the 
Plantation Office at London who took the money of applicants, and favored or opposed 
them according to the sum paid, or party's interests at the time." This characterization of 
Mr. Blathwait is amply sustained by the best of authorities. 1 Laws of N. H., 1679-1702, p. 
651, note. 



128 



this committee is here disclosed which contemplated the recommenda- 
tion of this radical programme to the king and privy council. If the 
preliminary conclusions of a subordinate committee were to be taken 
as the inevitable act of the constituent body it would be unnecessary 
further to pursue the subject. This, it will be seen, was not a correct 
prognosis of the later action of the committee or of the king. 

The next presentation of the subject in the records appears in the 
committee's report, adopted January 12 and dated January 13. In 
the intervening three weeks between the journal entry and the date of 
the committee 's report a change in the attitude of the committee oc- 
curred. The report outlines a course of procedure widely and essen- 
tially different from that suggested by the previous journal entries. 

This paper is given in full on p. 119, ante. It is also quoted by Mr. 
Chalmers in his notes to the Annals, Vol. 1, pp. 508, 509, to "show in 
what light the lords viewed the conduct of those men, to whom he had 
delegated power." His attention was particularly attracted to the 
preamble, whereas the significant part of the document, viz., the recom- 
mendation, was confined to a plan for a new political government with- 
out reference to the repeal of the existing laws. 

It is most noteworthy that after setting forth the substance of all 
the criticisms that had appeared in the representations submitted by 
interested parties to the board and reiterating all in that line that ap- 
pears in the journal entries, the committee omits to recommend at least 
two of the five propositions that appear in the journal for December 
23, as a plan for ' 1 settling the province, ' ' and they limit themselves to 
the expression of an opinion that the situation requires the appoint- 
ment of some fit and able person, of whose fidelity and sufficiency his 
majesty shall be assured, to be authorized and empowered by his maj- 
esty's commission and instructions to settle that place (New Hamp- 
shire) under such kinds of government and laws as are necessary for 
the regulation and improvement of the province. Then follows the 
recommendation of the committee, — not for a repeal of the existing 
laws immediately or in toto, — not for the substitution of the 
laws of the kingdom of England in a body as the municipal law of the 
province (to be then the subject of adaptation to local conditions and 



129 



necessities by amendment by the local colonial Legislature*), — but 
that under a new commission and with new and explicit instructions a 
competent executive might be sent out to regulate the affairs of the 
province, with fair prospects of more satisfactory results than could be 
anticipated through the employment of such radical and offensive 
methods of procedure as the first deliberations of the committee tenta- 
tively suggested. 

"This," they add (in the report of January 13), "is the best means 
to prevent all further irregularities and to render the place as well 
useful to the crown and able to defend itself. ' ' 

It is apparent that the committee had abandoned its first plan for 
the imposition of the entire body of the laws of England upon this 
province as its municipal law and, likewise, had abandoned the recom- 
mendations of a repeal of the existing province laws in their entirety. 

It will be seen, also, that the change of view on the first point is in- 
dicated by the very plain and pregnant suggestion that such laws as 
are necessary for the province can best be provided by a competent 
governor acting under instructions. (It can also be read between the 
lines that the executive proposed was to be a royalist of unquestioned 
reliability.) The utter impracticability of an attempt to make the 
body of the English law in its entirety workable and adaptable as the 
municipal law of New Hampshire or of any other American colony in 
1682, might well have impressed itself upon the minds of this com- 
mittee in less time than that which intervened between December 23 

*The absurdity of this proposition could not but come home forcibly to the minds of this 
committee whenever it came fairly to their attention. They would necessarily read the 
preamble to their own report. They would then have before them the opportunity to spec- 
ulate on the probable results of a revision of the body of the law of the realm of England 
by a governor who was not a lawyer, councillors who were all or most of them laymen, and 
and an assembly of similar constituents, acting in New Hampshire for a province of four 
towns and four thousand people without the aid of expert legal advisers or adequate books 
of reference, on the subject of English law, legislation and government. The special 
qualifications ef the local Legislature for such an undertaking, i. e., a general amendment of 
the body of the statutes of the realm to render them adaptable to colonial conditions, were 
before the privy council in the report of January 13, in the description of what the Cutt 
assembly had already produced in their law-making experiments. 

It will be apparant (notwithstanding the denunciatory text of the journal entry) to any 
competent and impartial critic who examines the Cutt Code that it is a creditable piece of 
legislation, and that the comments in the entries in the committee's journal of December 
23, and those in the preamble of the report of January 13, are a libel on the laws to which 
they refer. They are such comments, however, as might be expected from the Masonian 
lobby which beseiged the committee and which included Mr. Blathwait, acting in the dual 
capacity of attorney for Mason and clerk for the Committee on Trade and Plantations. 
— F. B. Sanborn's History of N. H., p. 76. 
9 



130 



and January 13. For some reason, — probably from the advisability of 
avoiding an experiment, doomed to failure in advance, — that feature 
of the first plan was excluded from the recommendations of the report. 

The other question, whether the existing laws should be repealed in 
tdte, those that were really good laws and unobjectionable, as well as 
those that were from the point of view of the home government, "ab- 
surd, incongruous," etc., or whether the revision of those laws and 
the construction of a new system of laws as far as necessary, should 
be submitted to a new province government, constituted and ordered 
to the satisfaction of the king, was one of policy and method in admin- 
istration in the home government. There is little opportunity for 
doubt that the latter was the one that was in the mind of the com- 
mittee as. preferable when, on January 13, they finally reported to 
the king. This is as patent and prominent in this report, as was the 
other plan in the entries of December 23 in the committee's journal. 

The next question is whether the plan of December 23 or that of 
January 13 was actually adopted by the king. 

The same committee which made the propositions of December 23 
inferentially abandoned them when they formally adopted January 12, 
and the next day submitted, the report and later recommendations, in- 
volving radically different conclusions and advice. 

If the first plan had been adopted, with respect to the repeal of the 
Cutt Code in its entirety and the imposition of the body of the laws of 
England upon the province as its local municipal law, had been in- 
sisted upon, there should have been ( 1 ) some evidence of this plan and 
purpose in the lieutenant-governor's commission and instructions; (2) 
a record of the repeal in the archives of the privy council and in the 
books or files of the province; and (3) evidence of the publication of 
such a decree in the province; and (4) evidence of conduct of the gov- 
ernment of the province in consonance with the plan first outlined. 

On the first point the assertion is sufficient that the commission and 
instructions make no allusion to a government by the laws of England 
nor to their employment in any manner or to any extent as the munici- 
pal law. Had the first plan been adopted by the king, the place for 
its announcement was in these instruments. 

As to the second point, it suffices to say that exhaustive and repeated 



131 



searches of the English Privy Council Records, — the same records 
presumably that were accessible to Mr. Chalmers when he composed 
the first volume of his history, — fail to disclose any evidence of the 
repeal of the Cutt laws by the king or privy council. The correspond- 
ence on this subject, which has transpired between the editor of State 
Papers and the agents of his department in London, will be given 
in the appendix to this review. 

The English Calendar of Papers for that period, in the Public 
Record Office, mentions no such paper and is the best evidence that 
no such document exists. 

The Calendar of New Hampshire Papers, made by the late B. F. 
Stevens for the New Hampshire Historical Society, and published 
by the state in 1893 as Vol. 23, N. H. State Papers Series,' contains 
no evidence of the existence of any decree of repeal of the Cutt laws by 
the king or privy council. The evidence of repeal, if one had been 
ordered by the king, was an essential part of the information and in- 
structions to which the president and council were entitled as adminis- 
trators of the province, and which also properly constituted a part of 
the province records, without which government would be misdirected. 
All the acts passed and approved by the General Assembly in the time 
of President Cutt, by the terms of the commission (1 Laws of N. H., 
1679-1702, p. 6) were to remain and stand in force until the king's 
disapproval should be made known. The province records are as bar- 
ren of existing evidence and of traces of any pre-existing evidence of 
the repeal of these laws as are the archives of England. 

On the third point it suffices to refer to the provision of the com- 
mission to the effect that repeals must be made known in the province, 
otherwise they are invalid. 

In the fourth place, reference must be had for evidence of conduct 
on the part (a) of the home government, and (b) on the part of the 
province government with reference to the question of conformity to 
the plan of December 23 or that of January 13. 

The next act of the home government in New Hampshire affairs, 
after the submission of the report of January 13, 1681- '82, was the 
execution of a new commission, with accompanying instructions for 
the government of the province. 



132 



Considering this commission and the instrnctions that were to ac- 
company it, with reference to the plan of December 23, it will be ob- 
served (as before remarked) that there is no provision or instruction 
purporting to make the laws of England the municipal law of the 
province. There is no order, decree or suggestion that the existing 
province laws are to be regarded as repealed. On the contrary, on 
page 2 of the commission, 1 Laws of N. H., 1679-1702, p. 49, the 
lieutenant-governor is directed to govern the province according to 
such reasonable laws as now are existing or remaining, or as shall 
thereafter be duly made and agreed upon by his government, that is,, 
by himself and his council legislating in conjunction with a house of 
delegates as the second branch of the legislative body. This is not 
the text of the clause, but it is submitted as a fair statement of its 
substance and meaning. There is no order for the repeal of section 1, 
part 2, of the general laws of the time of the Cutt presidency. On the 
contrary, there is substituted for it a carefully considered provision 
(1 Laws of N. H., 1679-1702, p. 55), recognizing the Masonian claim, 
but setting limitations on the claimant's exactions against the inhabi- 
tants. The king also advises the lieutenant-governor to endeavor to 
effect a reconciliation between the parties and provides for the sub- 
mission of the interests in controversy in certain cases and under 
certain conditions to himself for determination. This comports well 
with the scheme of the report of January 13 for "a commission and 
instruction to settle that place under such kinds of government and 
laws as are necessary for the regulation and improvement of that 
province." 

The Cranfield commission (1 Laws of N. H., 1679-1702, p. 56) con- 
tains a clean-cut provision for the repeal of the Cutt commission, 
which is as follows : 

"We do hereby further declare our will and pleasure to be that 
our commission bearing date the eighteenth day of September, 1679, 
do from henceforth cease, determine and be utterly void." 

In this connection the addition of a clause, in substance as follows : 
"and the several acts of assembly and orders of council passed and 
adopted under authority of said commission are hereby repealed and 



133 



made void," would have been in exact conformity to the propositions 
of the committee of the privy council of December 23, and would 
have been in an indispensable part of the commission, had the home 
government been then proceeding according to the plan first formu- 
lated by the committee. 

That this provision does not appear in the commission nor in- 
structions by which the Cranfield government was established, is the 
best evidence that the first plan was never brought to the attention 
of the king or that assuredly it was never accepted by him, — in short, 
that it was abandoned by the Committee on Trade and Plantations, 
and,. therefore, formed no possible basis for action on the part of the 
king and privy council. 

Mr. Edward Randolph, the sturdy representative of the king's 
cause in New England, writing to a friend in 1685, makes this sig- 
nificant statement : 

' ' Last week Mr. Blaithwait was proposing that Mr. Mason should 
quit his pretensions in New England, and lay all at His Majesty's 
James Second's feet, upon His Majesty's making him governor of 
Bermuda, and allowing to him and his heirs two or three hundred 
pounds yearly, forever ; to be paid out of the quitrents which will, in 
a short time, arise upon this settlement. For the people will rather 
pay to His Majesty sixpence an acre, than one farthing to Mr. Mason. 
I fear his grants will hardly hold out upon a trial at the Council 
board* He is sure of all assistance from the plantation office ; but his 
enemies have the larger purse." Letter, Edward Randolph to Sir 
Robert Southwell, October 3, 1685, Memoir and Correspondence of 
Edward Randolph by Robert Noxon Toppan, 1898, Vol. 4, p. 59. 

Is it not quite possible that this was "prophecy in the light of his- 
tory?" If the proposition of the "plantation office," December 23, 
1682 (mooted only three years before the date of Mr. Randolph's 
letter), to repeal all the existing local laws enacted in the time of 
President Cutt and to impose the body of the English law in its en- 
tirety upon the province, with a governor having the right of veto 
on all attempted provincial amendments of that law to suit local con- 
ditions, had been the evidence of the assistance Mason "was sure of" 
in that department; and if the rejection of the scheme had ensued 

* Italics are not in the original document. 



134 



"upon a trial at the Council Board," Mr. Randolph's letter would 
be a very fair recital of the principal points of the episode which had 
been established by the complete official records, read in connection 
with subsequent events. Mr. Randolph's statements, upon this hy- 
pothesis, were well founded in the actual contemporary knowledge 
he must have had of the course of events. 

The other proposition, the converse of the one last considered, is 
that the conduct of the provincial government, under the Cranfield 
commission, is consonant with the theory that the commission and 
instructions are predicated on the conclusions of the committee as 
presented in the report of January 13, and not upon the representa- 
tions entered in the record of December 23. 

The text of the commission and instructions compared first with the 
entries of December 23 and next with the report of January 13, affords 
the best proof of the validity of this contention. 

The plan of January 13 contemplated : 

1. A governor, fit, able and of assured loyalty to the king; 

2. Authorized and empowered by commission ; 

3. To settle that place, viz., New Hampshire ; 

4. Under such kinds of government and laws as were necessary; 

5. For the improvement and regulation of that province. 
This, the committee say, they offered as the best means: 

1. To prevent further irregularities; 

2. To render the place useful to the crown ; and 

3. Able to defend itself against the natives and foreign invasion. 

It may be added that this is manifestly a substitute for the plan 
of December 23 and not in any sense an endorsement of those parts 
which relate to a repeal of the entire body of the Cutt laws and to the 
imposition of the entire body of the laws of the realm of England as 
the municipal law of the province. 

The commission and instructions, in about four months, that is, in 
May, 1682, followed the report of January 13, and were in strict 
conformity to the plan therein outlined by the committee. 

The governor and vice-admiral, with the official designation of lieu- 
tenant-governor, was Edward Cranfield, an Englishman, a royalist, 



135 



a churchman, and a friend and partner of Mason. Belknap's History 
of New Hampshire, Farmer's Ed., p. 96. 

The Legislature was to consist of the lieutenant-governor and his 
council, appointed by the king, with the right of suspension and 
temporary appointment of councillors vested in the lieutenant-gov- 
ernor, as the Senate, and a house of deputies consisting of representa- 
tives, part of whom were to be chosen by the towns and part by the 
Masonian proprietary. The lieutenant-governor had the right of veto 
in all legislation and the right to dissolve the assembly at pleasure. 

The General Assembly, constituted as above, had authority by the 
commission to make laws, which were to be submitted to the crown 
and, when disallowed, to be of no further effect, but to continue in- 
definitely if not disallowed. This legislative power included the right 
to repeal existing laws as well as to enact new laws that might be 
found necessary. 

Another feature of this plan of government has already been the 
subject of comment. The instructions provided that "all laws for the 
good government and support of our said province of New Hamp- 
shire be made indefinite and without limit of time," excepting, of 
course, temporary laws, such as those providing for revenue and in 
which a limit is ordinarily and necessarily provided in the act. 

This is the best evidence that can be adduced to sustain the theory 
that the purpose of the home government had now become one looking 
not to the destruction of the local systems of municipal law, but to its 
reconstruction and complete development by judicious amendment and 
revision, and by the enactment of necessary new laws as the exigencies 
of government required. 

The lieutenant-governor was also authorized, by his sole authority, 
to appoint all the province officers, the deputy governor, the collectors 
of revenue, officers of the militia, the judges, justices and officers who 
exercised functions similar to those now committed to the county 
officers. 

The powers that the executive was to wield were so extensive and 
far-reaching that they might well have been the result of a compro- 
mise, whereby the original plan of wholesale repeal of the Cutt laws 
by the king's summary edict was abandoned in favor of a plan intended 



136 

to accomplish all that the partisans of Mason could find for their real 
interest without the appearance of arbitrary action on the part of 
the king. 

Only two functions of absolute personal government were wanting 
from this scheme to enable such an executive, as Edward Cranfield 
proved to be, to " settle the place" in a manner which ought to satisfy 
a much more exacting autocrat than Charles II. 

The lieutenant-governor was not authorized to appoint a majority 
of the house of delegates* and he was not empowered to pass new 
revenue and tax laws without the consent of the popular branch of the 
assembly. 

"And such," says Mr. Chalmers, p. 493, "was the form of gov- 
ernment, such were the instructions, which a governor, without a 
salary, without power, without a friend, was appointed to support 
and execute.''' 

In alienating the assembly and compelling them to such an extreme 
of resentment that they refused to participate in his government 
during the remainder of his term, he destroyed his last and only hope 
for a successful administration. 

In his extremity he resorted to a variety of expedients, all futile. 

He caused ordinances to be enacted by the lieutenant-governor or 
the deputy and the council without the concurrence or participation 
of an assembly. 1 Laws of N. H., 1679-1702, p. 77. These, of course, 
could not be enforced. 

Reverting, doubtless, to the knowledge he had of the first plan of 
the "plantation office," he at one time (and after the assemblymen 
refused to act with him), entertained the purpose of attempting to 
govern the province by the ' ' laws of England, ' ' without recourse to the 
local laws; even going so far as to express the opinion that the laws 
he had himself approved and sealed were not in force until affirma- 
tively approved by the king, a position clearly without sanction in his 
commission. 1 Laws of N. H., 1679-1702, Appendix, p. 791. The 
government of an American colony, with fifty years of experience in 
local self-government, by English laws was not a promising under- 

* This was the kind of legislation that James II provided for the dominion of New Eng- 
land by the Andros Commission. 



137 



taking for an administrator of the character and equipment of Ed- 
ward Cranfield. 

These facts relate, however, not to the beginning of the execution 
of that part of the king's commission, which provided for a province 
assembly to enact ' 1 necessary laws, ' ' but to the collapse which overtook 
the committee's final plan of legislation when it had but just been 
put in operation. 

In the first assembly under the Cranfield administration, the con- 
struction of a body of laws was inaugurated and pursued, as far as it 
went, apparently in accordance with the methods and purposes speci- 
field in the commission and instructions. A series of twenty-five acts 
were passed and approved by the lieutenant-governor with the con- 
sent of the council and assembly. (1 Laws of N. H., 1679-1702, p. 
58.) 

Article or chapter 26 was intended to be a revenue law. Here he 
broke with the assembly. Legislation was from that time on practi- 
cally at an end in this administration, because the lieutenant-governor 
could not control the deputies and the deputies would not yield to his 
requirements. 1 Laws of N. H., 1679-1702, Appendix, p. 807. 

With these dissensions it is not necessary for the purpose of this 
discussion to proceed further. 

The laws actually passed afford evidence of the understanding which 
the lieutenant-governor, his councillors and the members of the as- 
sembly, as well as Mr. Mason himself, must have had as to the status 
of the previously enacted province laws. These parties were, con- 
temporary with the proceedings by which the Cranfield government 
was established and by which the Cutt laws were or were not ac- 
tually repealed by specific decrees of the king. These persons were 
in a position to know all the facts — everything that had transpired 
with reference to the changes in the province government. 

Mr. Chalmers, making his investigations and writing his narrative 
nearly a hundred years afterwards, might have been in serious error 
on very important questions, as to which the leading men of the gov- 
ernment itself and at the time of its actual existence could not enter- 
tain any misapprehensions. Nearly all the members of the legislative 
council, corresponding to the senators of the present day, in the time 



138 



of Cutt were also members of the legislative council in the Cranfield 
General Assembly, when the twenty-five laws, now known as the Cran- 
field code, were enacted and approved in the latter part of the year 
1682. (See "The Early Government of New Hampshire,'' by Ezra S. 
Stearns, Manual of the General Court, 1897, pp. 1, 2.) Sad the so- 
called Cutt Code been repealed by the king when the so-called Cranfield 
code was enacted, the fact would have been within the common knowl- 
edge of all well-informed people and it would have been impossible 
that the Cranfield General Assembly could pass acts specifically and 
m unmistakable terms repealing a particular law or chapter of the 
Cutt Code, which every one of them knew had been included in a 
repeal by the king of the entire body of the Cutt laws. 

General Laws, time of Cutt, chapter 25, provided for the election 
of' jurors by the freemen in town meeting. 

In the Cranfield laws, chapter 19, title Jury, the enactment of the 
foregoing law is set forth as a part of the preamble of the latter, and 
then follows this language : 

"Be it .therefore enacted &c, that the clause in said bill relating to 
the choice of jurors he repealed,'" etc. 

These legislators must have been pursuing a singular course of 
procedure if the jury law of the Cutt Code had already been repealed 
by the king's act and they were attempting to add their own anathema 
to a law which the king had himself previously annulled. 

In the twenty-five acts, which mark the progress of the new gov- 
ernment ( Cranfield 's) in the construction of such "Laws as are neces- 
sary for the regulation and improvement of the Province, " according 
to the later plan and recommendations of the Committee on Trade and 
Plantations, it will be discerned that several in effect and by construc- 
tion must be regarded as repealing the corresponding articles or chap- 
ters of the Cutt laws. This method, as before observed, was not un- 
usual in the colonial period and is well illustrated by a comparison 
of the acts of the time of Allen and Bellomont (1 Laws of N. H., 
1679-1702, pp. 517-711), with the re-enactments published in Province 
Laws, Ed. 1716-'26. 

It is also an important consideration, in testing the validity of the 



139 



contention that the last plan of the Committee on Trade and Planta- 
tions was the basis on which subsequent events proceeded, by the actual 
forms of government that were provided and the actual conduct of 
those who were designated to administer the organic law, that, despite 
the very complete arrangement for the management of the provincials, 
they were able to bring the machinery of government to a standstill by 
the familiar expedient of withholding the legislation necessary for 
providing a revenue. But for this unforeseen denouement the plan of 
legislation, — revising and repealing the acts of the time of Cutt, — and 
developing a new system of laws, might have proceeded substantially 
on the lines and with the results contemplated by the privy council, 
without the necessity for the sweeping repeal of existing law, which 
the Masonian party had undoubtedly sought to accomplish through the 
agency of Mr. Blaithwait and the "Plantation Office/' but which, 
for some occult reason (the nature of which we must seek by reading 
between the lines in Blaithwait 's letter and Randolph's comments), had 
miscarried. 

Another fact, which bears important relation to these events, is the 
impecunious condition in which Mr. Mason was prosecuting his designs 
at this period. He appeared, in the last days of his life, as a petitioner 
in the governmental departments in London in forma pauperis. His 
financial resources are shown by the correspondence of his cousin, Ed- 
ward Randolph, to have been practically exhausted. 

The following extracts from the recent publication of Mr. Ran- 
dolph's correspondence, Toppan's Edition, discloses the true state of 
the case : 

Edward Randolph, in a letter to Sir Robert Southwell, dated Jan- 
uary 29, 1684~ '85, referring to Governor Cranfield, says: 

"He has ruined Mr. Mason by getting him to settle upon him £150 
a year, to be paid out of the profits of his lands, to support the gov- 
ernment upon which Mr. Mason has made over his province for years. ' ' 
Vol. 1, p. 249. 

Letter to Sir Robert Southwell, October 3, 1685 : 

"Last week Mr. Blathwayt was proposing that Mr. Mason should 
quitt his pretensions in New England and lay all at his Majesty's feet 



140 



upon his Majesty's making him governor of Bermodos and allowing 
him and his heirs £200 or £300 yearly for ever to be paid out of the 
quitt rents which will in a short time arise to his Majesty upon this 
settlement, for the people will rather pay to his Majesty 6d per acre 
than one fathering to Mr. Mason and now that charters are at so low 
an ebb I fear his grants will hardly hold out upon a tryall at the 
Council Board. * * * I fear that he will be in a pepetual contest 
about his lands in New England which I wish he had settled to his own 
satisfaction." Vol. 1, p. 267. 

Letter to Sir Robert Southwell, October 14, 1685 : 

"I fear that Mr. Mason will find little benefit in his antique grants 
in New England. 7 ' Vol. 4, p. 71. 

Letter to Sir Robert Southwell, November 10, 1685. On his ap- 
pointment to the office of postmaster of New England, hoping to make 
some profit out of the New England post, Randolph decided to give 
what he should gain to the children of Mr. Mason. He says: 

"What profits arise I design to Mr. Mason's young children in 
England. I allow them now £20 a year till his better fortunes will 
afford them a larger supply. I shall not be wanting to do him and his 
all the survice that lies in my power. At my taking leave of the Earl 
of Clarendon I reminded his Lordship of Mr. Mason to be appointed 
to the Government of Bermodos which was well approved by his 
Lordship and I hope will be for his benefit." Vol. 1, pp. 271- '2. 

Letter to Sir Robert Southwell, November 27, 1685 : 

' ' I would glad be furnished with some directions about Mr. Mason ; 
being very unwilling to think that he should be oblidged to come to 
England to be exposed to his merciless creditors." Vol. 4, p. 71. 

Letter to Mr. Povey, Boston, June 21, 1688. He says : 

"My cousin Mason can make no progress in his business. He has 
attempted to try his title at Piscataqua, but has been delayed by the 
judges; and the inhabitants are far more obstinate than formerly. 
Mr. "West having told some of them that his title is of little worth." 
Vol. 4, p. 227. 

In a letter from Fort Albany, dated September 12, 1688, he says : 

"Of the date of my cousin Mason who died the 6 instant and was 
buried at Kingstone upon the river. He was much troubled at the 



141 



great delays in his business by his pretended friend Mr. Dudley. 
His excellence is much concerned at his loss. We will do the best we 
can for his poor children." Vol. -2, p. 76. 

The officials moved with great reluctance in the business of dis- 
posing of colonial laws, except when exorbitant fees were to be paid 
them. 

Governor Bellomont, in his correspondence with the home govern- 
ment, expressed himself without reservation as to the reprehensible 
relations of Mr. Blathwayte to the claims and interests of Allen and 
Usher at a later date, with respect to the title to the territory of New 
Hampshire. Doyle, 3 English Colonies, pp. 294, 295, 332, 333; Let- 
ter of the Earl of Bellomont, June 19, 1700, Colonial Papers, Am. and 
W. Indies, 561 ; Laws of N. H., 1679-1702, pp. 519, 650, 651, 652. 

The laws sent over from New Hampshire in 1693 were not finally 
disposed of until 1706. Meanwhile Mr. Blathwayte was demanding 
money for ' ' forwarding the laws. ' ' He was clerk of the privy council, 
but in 1694 required £400 for this service and Lieutenant-Governor 
Usher, representing also the Allen interest, recommended the raising of 
the money for Mr. Blathwayte. The assembly refused and the laws 
remained in the files ten years after that date. 

Under all the circumstances it is not difficult to discover good reasons 
why Mr. Mason did not procure the repeal of the Cutt laws if he was 
not able to approach the privy council otherwise than by such formal 
arguments and representations as are disclosed in the correspondence 
sent home from New Hampshire to Mr. Blathwayte by Mr. Chamber- 
lain in 1681, unaccompanied by cash or its equivalent. Laws of N. H., 
1679-1702, 785, 786, 787. 

Governor Bellomont 's letter of June, 1700, to the Lords of Trade 
(2 N. H. Province Papers, 348), and his letter denouncing Blathwayte 
and cited by Mr. Palfrey, 4 History of England, p. 218, supply the 
evidence, both as to Mr. Blathwayte 's character and official methods 
and as to the probabilities on the question whether results would ensue 
in favor of Mr. Mason in his endeavors to procure the repeal of the 
New Hampshire laws of the time of Cutt without the payment of a 
price that was far beyond his resources. 

An important and controlling provision of the king's commission to 



142 



John Cutt, establishing the province of New Hampshire, was as fol- 
lows : 

"That all and every such acts, laws and ordinances as shall from 
time to time be made in and by such general assembly or assemblies 
as shall be first approved and allowed by the President and Council for 
the time being, and thereupon shall stand and be in force until the 
pleasure of us our heirs and successors shall be known whether the 
same laws and ordinances shall receive any change or confirmation or 
be totally disallowed and discharged." 1 Laws of N. H., 1679-1702, 
p. 6. 

These laws were duly forwarded in accordance with the requirements 
of the commission to the home government, May 10, 1681. Id., p. 10. 
The record demonstrating that they were duly enacted and duly for- 
warded to the home government for examination, it is incumbent upon 
those who assert that these laws were repealed by the king in council 
to adduce proof (1) that the records in the home government show the 
fact to be as alleged, and (2) that the decree of disallowance, if there 
was one, was duly published in the colony. 

In the first place it has been shown, although it was not necessary 
in this case to prove the negative, that there is no record of the repeal 
by the king or the privy council. In the next place there is no record 
or evidence in England or the province and state that any such dis- 
allowance was ever suggested, much less published, prior to the 
separation of the colonies from the mother country. It is also essential 
that those who assert that publication of a repeal was ever made should 
prove it affirmatively. This has never been done nor even attempted. 

There is no uncertainty as to the forms and procedure which were 
deemed necessary in the colonial period for legally making known in 
the province the fact of a repeal of a province law. Allen and Usher, 
with the presumed co-operation of Blathwayte, procured the repeal 
by the queen of an "Act for the Confirmation of Town Grants," and 
an "Act to Prevent Contention and Controversy That May Arise 
Concerning the Bounds of Towns of the Respective Town Within 
This Province," both passed, as they conceived, against the interests 
which they had by their land titles. The details in regard to this 
transaction are given in a note in 1 N. H. Laws, 1679-1702, 649. The 



143 



record of the repeal was read by order of the governor in both houses 
of the Province Assembly, November 11, 1703, and it was thereupon 
ordered that the decree be published by the beat of drum. 3 Province 
Papers of N. EL, p. 285. 

A clear and exact statement of this rule is given in the charter of 
Massachusetts Bay, granted in 1691. It is quoted for the purpose of 
showing that importance was attached to the publication in the prov- 
ince of the fact of a repeal of a local law by the king in council. The 
clause is as follows : 

"And that in case all or any of them [the province laws] shall at 
any time within the space of three years next after the same shall have 
been presented to us or our heirs and successors in our or their Privy 
Council be disallowed and rejected and so signified by us, our heirs 
and successors under our or their sign manual and signet, or by or in 
our or their Privy Council under the Governor for the time being then 
such and so many of them as shall be so disallowed and rejected shall 
thenceforth cease and determine arid become utterly void and of none 
effect : Provided always that in case we our heirs or successors shall 
not within the term of three years after the presenting of such orders, 
laws, statutes, or ordinances, as aforesaid, signify our or their disal- 
lowance of the same, then the said orders, laws, statutes, or ordinances 
shall be and continue in full force or effect according to the true in- 
tent and meaning of the same until the expiration thereof or that the 
same shall be repealed by the General Assembly of our said Province 
for the time being. ' ' Acts and Resolves of Massachusetts Bay, Ames- 
Goodell Ed., 1869, 17. 

In the absence of any such record of a repeal of the Cutt laws, there 
are no presumptions available in aid of the finding of the fact. 

It appears that it was the understanding in the colony and in the 
home government, as indicated by the conduct of the parties, that in 
cases where repeals of colonial acts had occurred hi the privy council, 
the repeal would not be operative in the province until it had been 
formally made known and published there in compliance with the re- 
quirements of the king's commissions. Thus the act of August 17, 
1699 (1 N. H. Laws, 1679-1702), entitled an "Act for Establishing 
Courts of Public Justice within this Province," although repealed 
by the queen in council in 1706, continued to be the judiciary act of 



144 



the province from 1699 until its actual repeal by the state Legislature 
in 1792, for the purposes of a general revision of the law. Several 
other acts passed about the same period had the same history. Note 
in Laws of N. H., 1679-1702, p. 661 ; Acts and Laws, Province of N. H., 
1716-1726, p. 4, et seq.; Acts and Laws of N. H., Ed. of 1771, p. 5, et 
seq. 

There is no apparent explanation for the survival of these acts that 
were, according to the records of the privy council for 1706, actually 
repealed by the queen in council for nearly a hundred years as the 
working law of the province, constituting the basis of nearly all their 
court procedure and court jurisdiction, from 1699 to 1792, with 
authoritative publication in at least three general compilations of 
the laws of the province and state, except upon the hypothesis that 
the repeal in the privy council, which has been recently exhumed, 
was not at the time, for reasons of state, officially made known and 
published in the province, and for that reason the repeal was not re- 
garded as in any degree effectual in the absence of regular, formal and 
official publication of the royal act of annullment in the province. 

Much less can there be substantial basis for a conclusion that co- 
lonial laws could be regarded as repealed in the home government in 
cases wherein there is neither record evidence of the act of annullment 
or disallowance on the part of the crown nor any evidence whatever of 
the publication of such a decree in the province. 

Upon these considerations of fact and the record evidence, the argu- 
ment is predicated that the New Hampshire laws passed in the time 
of the presidency of John Cutt were never repealed by a king or 
queen in council nor by the privy council without the actual presence 
of the king or queen. 



145 



XVI. 

CONSIDERATIONS TO BE REGARDED IRRESPECTIVE OF 
THE FOREGOING ARGUMENT, RELATIVE TO THE DISPOSI- 
TION OF THE LAWS OF THE TERM OF CUTT AND WAL- 
DRON IN THE HOME GOVERNMENT. 

1. If, however, there could be any speculative assumption or pre- 
sumption predicated on entries and reports of the committee to whom 
this body of laws had been committed for examination, as that action 
appears in the record, and sufficient weight were to be accorded to that 
report, read in the light of the events that ensued, as evidence to jus- 
tify an opinion that these laws had been actually and formally an- 
nulled by the king (which, as it is claimed here, is impossible on the 
evidence), the result would involve the conclusion that the people of 
the province were thereby deprived of the laws amendatory of the 
Bay Colony laws which they had enacted and which were really addi- 
tional to the existing laws, adopted in the time of the union. The 
municipal law remaining for the regulation of their personal rela- 
tions, rights of property and business concerns, for the preservation 
of order and the enforcement of the police, would, in the event above 
supposed, have been the law of the period of the union. If the laws 
known as the Cutt Code were repealed by the king, the colonists in New 
Hampshire had no other municipal law to which they could resort ex- 
cept the laws of the time of the union with Massachusetts. 

2. If, on the contrary, the Cutt Code was not abrogated by the king, 
all its provisions, not impliedly repealed by subsequent laws of the 
province or by the legislative departments of the governments of the 
colonies, of which it constituted a part, which were incompatible with 
particular provisions of- this first body of province statute law, contin- 
ued in force indefinitely, and either became a part of the, common law 
of the province, and its successor, the state, or a part of the positive 
written law evidenced by the text of the acts preserved in the original 
manuscripts in the English archives and in the state capitol at Con- 
cord. The purpose of the General Assembly, that framed and enacted 
the Cutt Code with reference to the continuance of the existing so-called 

Massachusetts colonial laws, is unmistakable. In that part of the laws 
10 



146 



of the time of the administration of President Cutt, which were en- 
acted by the first Assembly, the following section appears : 

[The form'r laws we were ruled by to stand till others made.} [14] 
FOR a present settlement of matters in Civil & Criminal proseedings, 
and Directions to Courts, Judges, & all other Officers ; IT IS Ordered ; 
that those Laws, by which we have formerly bin directed & governed, 
Shal be a rule to us in all Judicial proceedings, as far as they wil 
suit w'th our Constitutions, & be not repugnant to the Laws of Eng- 
land, until such Acts & Ordinances, as have bin, or shal be made by 
this Assembly, & approved by the Hon'ble President & Councel, may be 
drawn up, & legally published. 

THE like Laws shal be a rule to all the Select-men in each Town, 
for the management of all their prudential affairs, according to the 
laudable customs hitherto used. 

XVII. 

UPON EITHER ALTERNATIVE —THAT OF REPEAL AND 
THAT OF NON-REPEAL, OF THE LAWS OF THE TIME OF 
CUTT AND WALDRON, 1679-1682— THE LAWS OF THE TIME 
OF THE UNION WERE NOT ABROGATED. 

The comments of Judge Parker, in State v. Rollins, 8 N. H. 561, 
relate to this act or section of the laws of 1680. 

The elimination of the Cutt Code as a part of the statute law of the 
province, if such a disposition of it is required or permissible upon 
the historical and record evidence relating to the suppositious act of 
the king or his failure to take positive action with reference to it, only 
serves to lengthen the space of time in which the colonists of New 
Hampshire were being governed and the rights of persons and prop- 
erty determined by the previously existing municipal law. 



147 



XVIII. 

. THE RELATION OF THE CRANFIELD COMMISSION, THE 
CRANFIELD CODE OF LAWS AND THE CRANFIELD AD- 
MINISTRATION, 1682 TO 1686, TO THE HISTORY OF THE 
STATUTE LAW OF NEW HAMPSHIRE. 

An analysis of the Cranfield commission of 1682 and the laws 
enacted under it, except as it affords evidence relative to the legal 
status of the Civtt Code, discloses but few points, in addition to those 
already discussed in the preceding pages, that are pertinent and none 
that are important in reference to the case here under consideration. 

1. The commission contains no declaration referring to the pre- 
viously existing municipal laws of the province. It contains nothing 
that can be construed as a repeal of any existing law. While it con- 
tains in positive terms a repeal of the Cutt commission, with the 
limited and conditional rule of reference of the courts to the English 
law, it is noteworthy and significant that no such provision reappears 
in the Cranfield commission. 

2. It confers upon the executive, termed a lieutenant-governor, the 
right to govern the province, not according to the laws of England, 
but "according to the several powers and directions granted or ap- 
pointed you under this present commission and the instructions here- 
with given you: or by such further powers and instructions as shall 
at any time hereafter be granted or appointed you under our signet 
and sign manual and according to such reasonable laws and statutes 
as now are or hereafter shall be made and agreed upon by you with 
the advice and consent of our Council and the assembly of our said 
province." The laws and statutes, made under this authorization, 
were to be "near as conveniently may be unto the laws and statutes 
of our Kingdom of England." The statutes thus enacted were to 
remain in force until disapproved by the king or the privy council. 
The lieutenant-governor w r as accorded the right of veto. This last 
mentioned power was presumably regarded by the home government 
as an ample safeguard against legislation that was not in the opinion 
of the lieutenant-governor constitutional, not consonant with the spirit 
of English polity, or otherwise not fit to be enacted. 



148 



3. The lieutenant-governor, after the enactment of a body of laws 
known as the Cranfield code, in accordance with the authority of the 
commission, in the fall and winter of 1682~1683 (he having, mean- 
while, become allied with the Mason interests as a partner or practical 
beneficiary of some sort), soon had the people of the province in such 
a state of antagonism to his administration that he was unable to pro- 
cure any further legislation (except an act relating to pirates) by the 
concurrence of an assembly. Memoirs of Edward Randolph, Toppan, 
1899, Vol. 1, p. 258. He hinted to the home government in his cor- 
respondence that it would be as well if the laws which he had approved 
should be disallowed. He advanced an opinion (which was in con- 
flict with the provisions of the commission on that point) that these 
laws were not valid until approved by the king in council. "From 
thenceforth," i. e., from the date of disallowance, the laws were to de- 
termine and be void, according to the terms of the commission. He 
advanced the proposition (preposterous and impossible in view of the 
provisions of his commission and instructions and the colonial laws 
that he and his council and assembly had enacted) in his correspond- 
ence, that he would govern the people by the laws of England, not- 
withstanding the existence of the local laws enacted and approved by 
himself, with the consent of the council and assembly. 1 Laws of N. H., 
1679-1702, Appendix, p. 791. 

It was, however, no more practicable for him to employ the existing 
laws of England as the municipal law of this province than it would 
have been to attempt the imposition of the civil law of the continent 
upon it with the same purpose. The laws of England in their entirety 
were not adapted nor adaptable to the conditions existing in the 
province. The provision for the local exercise of legislative powers 
and the enactment of local laws incorporated by the king in every 
commission for the government of the American provinces and colonies 
completely negatives the assumption of Lieutenant-Governor Cranfield 
that it was in the mind and purpose of the king to impose the body 
of the statute and common law of England upon the people of any 
of the political divisions of New England as their municipal law. 

Failing in all attempts to procure legislation for fiscal and revenue 
purposes, and, indeed, for any purpose, except the instances above 



149 



mentioned, the lieutenant-governor and the council attempted to legis- 
late without the co-operation of a popular representative assembly. 
This administration was a failure in every direction and came to an 
end within four years, discredited both in the province and with the 
home government. F. B. Sanborn's History of New Hampshire, p. 
109; Copp v. Henniker, 55 N. H. 187; Farmer's Belknap, 105 and 
chap. 8, passim. 

In a letter to the Trade's Committee, the lieutenant-governor says: 

"I have sent your Lordships by way of Barbadoes, a duplicate 
of the laws I have passed which if your Lordships please to disallow 
as it may be the means of having better made for the future. In 
the meantime I govern them by the laws of England. ' ' 

Laws, supra, 791. 

After the unsuccessful attempt which he had made to accomplish 
by legislation in the General Assembly a general revision of the laws, 
he ventured another experiment, the one he had hinted at in his letter 
above quoted. 

The result was a failure from every point of view. More than 
that, his acts were held in contempt and ridicule by the people of the 
province and were repudiated by the home government. See, in addi- 
tion to authorities above cited, Letters of Edward Randolph, Toppan's 
Collection, Vol. 4, pp. 3, 17. Then laws were never repealed by the 
king. 

4. The changes made by the statutes of the province, enacted in 
this period, did not relate to or in any manner or degree affect the 
validity of the acts of 1641 and 1647, relating to common public 
rights in the great ponds and other specified waters. 

5. As stated in the preceding pages, the undertaking by the General 
Assembly to formulate a consecutive series of acts or articles, looking 
to a possible development into a complete system or body of laws, 
failed in the first year of this government for reasons detailed in an 
explanatory note in the Appendix to 1 N. H. Laws, 1679-1702, p. 807. 



150 



XIX. 

DOMINION OF NEW ENGLAND AND THE PERIOD OF AD- 
MINISTRATION OF SIR EDMUND ANDROS. 

Several considerations in the establishment and administration of 
this government require special attention, as they are fundamental in 
the ascertainment of the status of the municipal law of the New Eng- 
land colonies and provinces at this period. 

1. The orders contained in the commission united Massachusetts 
Bay, New Plymouth, Maine and New Hampshire, in the first instance, 
as one colony, to be known as the Dominion of New England. The 
legislative power was committed to the governor and council, this 
experiment being one in which representation of the people, as pro- 
vided for in the previously authorized houses of delegates, elected by 
themselves, was dispensed with and eliminated from the new scheme 
of government. The instructions, as before stated {ante, p. 91), 
provided that all laws, statutes and ordinances within our territory 
and Dominion of New England should continue and be in full force 
and vigor, so far as not in derogation of the commission and instruc- 
tions, until the governor and council might enact other laws to take 
the place of the existing laws. 1 N. H. Laws, 1679-1702, p. 157, Art. 
10. This order gave all existing municipal laws in the several colonies 
and provinces as absolute confirmation and as complete validity as the 
king, in the exercise of his prerogative in the government of the col- 
onies, was capable of imparting. In the application of this edict to 
that part of the Dominion of New England, which had been the prov- 
ince of New Hampshire, it is evident that the municipal law, which 
was recognized, was that of the period of the union, 1641-1679, as 
amended by the laws of the province enacted in the time of the gov- 
ernments under the Cutt commission, 1680-1682, and the Cranfield 
commission, 1682~1686. 

2. Whether the amendatory acts of the time of Cutt and Cranfield . 
were abrogated by the king or the privy council is manifestly imma- 
terial. If there were no laws known as the Cutt Code and the Cran- 
field code in legal existence at the time the Andros instructions of 
1686 were promulgated, then the laws of New Hampshire, confirmed 



151 



and made valid by that order, were those of the period of 1641-1679. 
If the statutes known as the Cutt Code were still valid, except as 
amended by the statutes of the time of Cranfield, then article 14 of 
the general laws of the Cutt compilation would serve to make the con- 
tinuity of the system of statute laws more definite. If that article 
were not operative, the laws of 1641.-1679 would be the only municipal 
law to which resort could be had by the people of that part of the 
Dominion which had formerly been New Hampshire, and those laws 
would be of necessity the system upon which the order of the king 
was operative and effective, until, in the language of the Andros 
commission, other "laws shall be passed. " Laws, supra, p. 157, sec. 10. 
The statutes of the Dominion of New England, enacted by the council, 
created by the king's commission and instructions, are found in a 
series published in 1 Laws of N. H., 1641-1679, pp. 184-225. 

3. Nothing in these acts impairs or modifies the act of 1641-1647, 
relating to the great ponds, and there is nothing that is in any degree 
inconsistent with that law to be discovered in the Andros enactments. 

4. As was the case with the Cranfield laws, those enacted by Sir Ed- 
mund Andros and the council were but a fragment of an intended sys- 
tem, legislation being summarily ended by the successful revolt of the 
people of the Dominion. 

5. The provision in the Andros commission relative to proceedings 
and judgments in the courts is similar to that which appeared on the 
same subject in the Cutt commission. 



THE STATE OF THE MUNICIPAL LAW OF NEW HAMP- 
SHIRE AFTER THE TERMINATION OF THE ANDROS AD- 
MINISTRATION IN 1689. 

The revolution of 1688 in England, however, precipitated another 
in the Dominion of New England, in April, 1689, the people revolted 
against the Andros administration and succeeded in making a sum- 
mary end of it. Each of the constituent colonies, except New Hamp- 
shire, returned to its former colonial government. In Massachusetts 
Bay, the governor, deputy governor and council in office in 1686, im- 



152 



mediately, prior to the beginning of the preliminary administration of 
the president (Joseph Dudley) and council in the Dominion of New 
England, resumed their offices, and on the 6th of June. 1689, at the 
request of the representatives of the several towns, accepted the gov- 
ernment, according to the forms pursued under the ancient charter. 

The petition of the inhabitants of New Hampshire in this behalf 
and their written consent to the assumption of the government by 
Massachusetts Bay, to be administered "as formerly." according to 
the provisions of the laws of the colony, may be examined in 1 X. H. 
Laws, 1679-1702, p. 261. 

The General Court of Massachusetts Bay. convened in June, 1689, 
resumed the business of legislation for the colony, according to the 
forms and customs which obtained before the interposition of the Do- 
minion of Xew England. The following vote was passed on the twenty- 
second day of that month: 

' ' It is declared that all the lawes made by the Governor & Company 
of S'd Colony, which were in force on the twelfth day of May 1686 
(Except any that are repugnant to the lawes of England) are the 
lawes of this Colony, & Continue in force till further Settlem't to w'ch 
all inhabitants & residents here are to give due Obedience." 1 N. H. 
Laws, 1679-1702, p. 291. See, also, petition of the representatives and 
vote of the governor and council thereon, Id., p. 281. 

This government continued on the political method formerly estab- 
lished and with which the people of the colony were familiar prior to 
the Andros regime and with the customs and statutes of the period of 
1629-1686, as the municipal law, until the new charter of 1691 was 
accepted and a government organized according to its requirements in 
1692. It is not open to question that the laws of the first colonial 
period were those in force in the Massachusetts Bay in this period 
of three years, between 1689 and 1692. 

Meanwhile, the New Hampshire towns had failed in their endeavors 
to form a provisional province government in the absence of informa- 
tion and instructions from England as to their majesty's pleasure 
towards them. In the winter of 1689-1690, the inhabitants of New 
Hampshire petitioned on their own initiative for reunion with Massa- 



153 



ehusetts Bay. New Hampshire Without a Province Government, by 
C. W. Tuttle, 1 Laws of N. H., 1679-1702, Appendix, p. 847. 

The following act or order was thereupon passed in the General 
Court of Massachusetts Bay with reference to the petition, March 19, 
1690: 

"Upon Reading and perusal of an Act of the Hono'ble Governo'r 
and Council, dated the 28 'th day of ffebruary last past. In Answer 
to the Petition of the Principal Gentlemen and Inhabitants of New 
Hampshire for Protection and Governm't from this Colony as formerly 
untill their Majesties' pleasure shalbe known concerning them; And 
the Com 'issionating of Officers to take the Command of the Militia 
there. 

"This Court do hereby manifest their consent & approbation of 
the said Act of the Governour and Councill in that behalf e; And do 
further consent that their Ma 'ties Subjects of said New Hampshire 
be fully taken under Protection and care of this Government, Upon 
the same Conditions in all Respects with the Inhabitants of this Colony 
and the Severall Officers Civill & military by them presented are ap- 
proved." 1 Laws of N. H., 1679-1702, pp. 371-372. 

"The province," says Mr. Tuttle, "was now again fully restored 
to its former relations with Massachusetts, and remained till the 
eommission of Samuel Allen as Governor was published there August 
13, 1692." 1 Laws of New Hampshire, 1679-1702, Appendix, p. 855. 

Belknap says : 

"Members were sent to the General Court [of the re-united colonies] , 
which met there in this [1690] and the two following years. The 
gentlemen, who had formerly been in commission for the peace, the 
militia and the civil offices, were by town votes, approved by the 
General Court, restored to their places, and ancient laws and customs 
continued to be observed." History of New Hampshire, Farmer's Ed., 
p. 122. 

There were representatives from the New Hampshire towns in the 
General Court in the entire period of this second union. Farmer 's 
Belknap, 122, note $; Hist. Memoranda of Ancient Dover, Scales' Ed. 
p. 8. 

The "ancient laws and customs," which Mr. Belknap says were 
restored in New Hampshire, could have been no others than those 
established in the first colonial period. 



154 



There was in this period, undoubtedly, a complete confirmation and 
re-establishment of the government as it was in the time of the first 
union, and a confirmation and re-establishment of the municipal law, 
a large part of which had persisted unimpaired, and other parts of 
it, though deranged or altered by the progress of legislative experi- 
ments of the several transitory governments that had intervened, 
should be regarded as restored by the logic of events. 

It is unquestionable that the statute law, at this time made operative 
by the order of the General Court for Massachusetts Bay and adopted 
in New Hampshire by virtue of the act of union, was that included 
in the system which was built up under the first charter and which 
was the same for the people of all the territory included in the first 
and second unions. 

This second union possessed all the essential elements of a de facto 
government. All the conditions existed on which the validity of the 
acts of a de facto government depends. There was no rival government 
and no objection to it raised by any competent authority. Ante, p. 82. 
The laws, which were, by the order of June 22, 1689, declared by the 
king's order establishing the Andros government to be in force, were 
the laws of the first colonial period ending May 12, 1686. This neces- 
sarily included the early colonial laws relating to the great ponds. 

"All those laws," the order declares, "are the laws of this colony 
and continue in force until further settlement." 

This last expression, "further settlement," refers, presumably, to 
later instructions from the home government and subsequent legislative 
amendment of existing law, if any should be found necessary. New 
Hampshire and Massachusetts Bay were at this time subject to the same 
laws and the same government. 



155 



XXI. 

. THE SUCCESSIVE GOVERNMENTS OF THE PROVINCE 
FROM 1692 TO THE AMERICAN REVOLUTION AND THE AB- 
SENCE OF REPEALING CLAUSES IN THE COMMISSIONS, AS 
ISSUED AND PUBLISHED IN THEIR ORDER, AND THE AB- 
SENCE OF ANY ACTS, THROUGHOUT THE ENTIRE PERIOD, 
REPEALING THE COLONIAL ACTS OF THE PERIOD FROM 
1611 TO 1679. 

1. The organic law for the government of New Hampshire, subse- 
quent to 1679 must be sought in the king's commissions provided for 
each administration. These instruments authorize the exercise of 
the law-making power locally in the colony in substantially the same 
terms in each instance. There is no evidence afforded by either of them 
of a purpose or intention to abrogate any of the laws enacted under 
any previous commission. On the contrary, in the Allen instructions 
(1 Laws of N. H., 1679-1702, p. 510), the language employed, re- 
quiring the transmission of all laws then (at the date of the com- 
mission) in force and such as should afterwards be made, indicates a 
recognition or supposition, on the part of the home government, that 
there were subsisting laws of the province previously enacted. See, 
also, Allen's instructions, Id., p. 511, sec. 21. The commissions all 
require the government to be administered in the province, ' ' according 
to such reasonable laws and statutes as now are or hereafter shall be 
made." Cranfield's Commission, 1 Laws, 1679-1702, 19; Allen's Com- 
mission, Id.. 592: Bellomont's Commission, Id., 613. The correspond- 
ing clause in the commission of John Wentworth is to the same effect 
but possibly in more explicit terms, viz., "according to such reason- 
able laws and statutes as are now in force, or hereafter shall be made 
and agreed upon by you. " Laws of N. H., Ed. of 1771, p. 2. The 
principle of continuity of the laws enacted, so that those of one ad- 
ministration should not fail with the determination of the governor's 
commission, but should be perpetual until formally or inferentially 
repealed by an act of the General Assembly or the king in council, is 
very clearly discernible, not only in the text of the commissions and 
instructions, but in the practice that prevailed with the several sue- 



156 



eessive province governments. Acts of date as early as 1696 are car- 
ried in the two printed compilations of 1716-1726 and 1771, and to 
a date subsequent to the Revolution and the constitution of 1784. 
See repealing act of June 20, 1792, Laws, Ed. of 1792, p. 401. It is 
also stated in the instructions of Lieutenant-Governor Cranfield and 
those of Governor Allen, that the laws enacted in the province are 
to be indefinite and without limitation as to time, except those of the 
class termed temporary, such as revenue acts. Cranfield, 1682, 1 Laws 
of N. H., 1679-1702, p. 57; Allen, 1691, Id., p. 511. The same direc- 
tions appear in subsequent instructions. Bellomont, 1698- '99, Id., p. 
625. The principle of persistence applies to all the colonial acts. 
There is no apparent reason for an assumption that the acts passed 
by the united colonies of New Hampshire and Massachusetts Bay, 
under the charter of 1621, the Cutt commission, 1680, the Cranfield 
commission, 1682, the Dudley commission, 1685, the Andros commis- 
sion, 1686, and under the de facto government, in which the General 
Court exercised all the powers of local colonial government for New 
Hampshire and Massachusetts, 1689-1692, ceased and became invalid 
when the respective governments were terminated or superseded merely 
as political agencies, which is not applicable to the laws enacted in the 
time of administrations under the later and similar royal commissions 
and governments. Monograph of Prof. Emory Washburn, "Did the 
vacating of the Colony Charter in 1684 on the adoption of the 1691 
charter annul the laws made under the former?" Mass. Hist. Soc. 
Proc. March, 1875, Vol. 13, p. 451. 

2. Both reason and necessity seem to control the conclusion that 
the provisions of municipal law, enacted from time to time from the 
beginning of the regular exercise of the law-making power by the 
colonial Legislatures and related to the rights of persons and prop- 
erty, not affecting the forms and constitutions of colonial govern- 
ment, and not necessarily affected by those forms and conditions, con- 
tinued in force until specifically repealed by the direct and unequivocal 
exercise of the royal power of abrogation of colonial acts by evident 
implication in the instances of conflict of the provisions of late acts 
with the earlier ones, or by the unequivocal act of a colonial Legis- 
lature. 



157 



The assumption is not tenable that with each mutation in the po- 
litical government provided for them, all the previously existing local 
municipal law, regulating rights of property and regulating the con- 
duct of the people in their relations with each other and as owners 
and occupants of property, ceased to have any validity, the people re- 
verting, meanwhile, to a state of nature, or to a system of English 
statute law, which, in a multitude of provisions, was inapplicable to 
local colonial conditions, and so continuing until the creation of a new 
municipal law comprehending all the incidents and details necessary 
to be included in such laws, should result from the exercise de novo 
of the legislative power conferred by each successive royal commis- 
sion. Such a theory is unreasonable in itself and is in conflict with 
the methods under which government was exercised in the province 
from 1679 to 1775. Copp v. Henriiker, 55 N. H. 186. 

There was no printed collection or selection of the laws of the 
province of New Hampshire, intended to embody any general presen- 
tation of the current acts until 1716. This was in no sense a revision. 
It was merely a selection and grouping of the more important existing 
statutes for the purpose of convenient reference in a printed book. 
The acts appearing in this collection contained no provision for the 
repeal of any previous legislation enacted by the existing province 
government or either of its predecessors. 

The same assertion is verified by the record with respect to the acts 
contained in each succeeding compilation to the end of the province 
period in 1775 and from that time to 1792. 

There is nothing, moreover, in the legislation of the province and 
state from 1691 to the present day that purports to repeal any part of 
the municipal law that was in force in New Hampshire at the termina- 
tion, in 1692, of the second union with Massachusetts Bay and which 
was entered formally and permanently by the way of regularly printed 
published editions into the most accessible body of the statute law of 
the province. 

If it has been demonstrated that the colonial laws of the period 
between 1641 and 1679 were the municipal law of New Hampshire, 
as well as of Massachusetts Bay at the time of the change of the 
political government by royal command, embodied in the commissions; 



158 



to Governor Allen and Governor Phipps, respectively, in 1691, — if it 
has been also established that by the public law of nations and by the 
law of necessity the existing municipal law of a nation, state, colony, 
or province (related to such frequently occurring changes as was this 
province), upon a change of political allegiance, jurisdiction, or sov- 
ereignty, continues until its provisions are repealed by the due exercise 
of competent legislative authority or power upon particular provisions 
of the existing law or against its entire body, — and if it cannot be 
shown that a particular act, known to have been existent and valid 
at the time of a change of a political form of government, has been 
actually repealed or altered, that act stands in full force and effect 
under the new political government as it did under the old. Authori- 
ties cited, ante, 92. 

It is sufficient to declare the fact that the law of 1641, 1647, relating 
to the great ponds, has never been repealed by any act of the Legisla- 
ture of the province and state of New Hampshire, and that it was 
never repealed by any order of the king or queen of England or the 
English privy council. 

"Whether, therefore, the early colonial laws, which were never abro- 
gated but which may have been omitted from the compilations of laws 
made and published in later periods, are to be regarded as still a part 
of the positive law, lex scripta, or as worn-out statutes (as Lord Chief 
Justice Wilmot employs the term, ante, p. 66), whose valid and es- 
sential provisions have become a part of the common law of the prov- 
ince and, later, of the state, is, perhaps, of less importance in relation 
to their active functions at the present time as components of the 
system of state law to be administered as occasion arises by the exist- 
ing courts than the fact that the principles underlying those acts and 
once formally and distinctly declared in them, are either in the one 
.form or the other definite, valid, continuing and enforceable rules 
of law and applicable in all cases to which they relate, at all times in 
the province and state periods, in regulating the conduct of persons 
and determining the limitations of private rights and the extent of 
public property and privileges in respect to all things, corporeal and 
incorporeal, to which such rights and privileges have rightfully at- 
tached. 



159 



XXII. 

TWO PRINCIPLES ARE RECOGNIZED IN ALL THE AU- 
THORITIES ON THE SUBJECT AS FUNDAMENTAL IN THE 
COMMON LAW OF MASSACHUSETTS, MAINE AND NEW 
HAMPSHIRE, GOVERNING THE PUBLIC USE OF THE GREAT 
PONDS. THESE ESSENTIALS ARE (1) THAT THE PUBLIC 
USE INCLUDES EVERYTHING FOR WHICH SUCH WATER'S 
ARE ADAPTED, AND (2) THAT THIS USE EXTENDS TO ALL 
SUCH WATERS OF LARGER AREA THAN TEN ACRES. 

The common law in this state and in the province, of which the 
state is the political successor, has been declared in a series of cases 
in the Supreme Conrt in the past fifteen years. This series certainly 
extends from Concord Company v. Robertson, decided December Term, 
1889, to Dolbeer v. Company, 72 N. H. 562, decided June 7, 1904, and 
the case of Company v. Olcott Falls Co., 65 N. H., shonld be included 

"In this State," the court say in Concord v. Robertson, page 24, 
"free fishing and free fowling in great ponds and tide-waters have 
not needed the aid of a statute for the abolition of written or the de- 
claration of unwritten law. So far as the ordinance of 1641 intro- 
duced or confirmed these liberties, it was an enactment of New Hamp- 
shire common law." 

If, therefore, this was the common law in the province, it was a 
subject of immemorial usage, existing by reason of the local conditions 
which rendered such a usage reasonable and probable, if not inevi- 
table. The evidence bearing upon this question is adduced from a great 
variety of sources and from an extensive period of time extending 
backwards from the end of the first half of the period of state govern- 
ment to the beginnings of the English immigration to New England. 

The points under which this evidence is classified may be numbered 
and specified as follows : 

I. The necessities of the people making a new settlement in a terri- 
tory having the physical characteristics of New England rendered the 
common public use of the larger inland ponds and lakes for fishing and 
fowling absolutely necessary for their comfort and sustenance in part, 
if not for their existence. 

II. The repeated formal declaration of this right in the only legisla- 
tive body that existed for them at intervals in a period of fifty years 



160 



is "unimpeachable evidence of the existence of conditions and usages 
which made the exercise of the right continuously as well proven as 
any matter can be by repeated and formal legislative declarations. 

III. The existence of a legal usage possessing all the essential ele- 
ments of a principle of common law in the province in 1692 having 
been proven, the presumption of continuance may be invoked, and that 
presumption, as it will be hereafter shown, is not only not rebutted, 
but is sustained by controlling evidence relating to the subject in the 
succeeding one hundred and fifty years. 

IV. The state ownership of the great ponds being established as a 
part of the common law existing in the province and state at the time 
of the adoption of the constitution in 1783, the incorporation of article 
89 (90) in that instrument must be accorded its legal effect in perpet- 
uating these rights and securing their continuation against every form 
of abrogation except acts of the Legislature. 

V. The principle common law rule of public rights in the great 
ponds and the incidental rules of the law of boundaries, whatever 
may have been the origin of this law and these rules, have always 
been rules of property entering into, limiting and controlling grants 
upon such waters during the whole period of the existence of the prov- 
ince and state. 

(10 

THE NECESSITIES OP THE PEOPLE MAKING A NEW 
SETTLEMENT IN A TERRITORY, HAYING THE PHYSICAL 
CHARACTERISTICS OF NEW ENGLAND, RENDERED THE 
COMMON PUBLIC USE OF THE LARGER INLAND PONDS 
AND LAKES FOR FISHING AND FOWLING ABSOLUTELY 
NECESSARY FOR THEIR COMFORT AND SUSTENANCE, IN 
PART, IF NOT FOR THEIR EXISTENCE. 

It has been elsewhere observed that the territory of the four original 
towns and the Isles of Shoals has since been occupied by twenty-eight 
municipal sub-divisions. In that territory all the different forms of 
seacoast, bays, inlets, rivers and great inland ponds, mentioned in the 
ordinances of 1641, 1647, were situated, and are now conspicuously 
identified on all the more comprehensive maps of the state. (See list 



161 



of great ponds in these towns, printed in the Appendix.) The early 
adventurers, who exploited the Laconia enterprises, explored the in- 
tervening regions to Lake Champlain, which was surrounded by the 
principal territory included in that patent. The adventures of Darby 
Field and the expedition of the agents of Massachusetts to Lake 
Winnipiseogee in 1652 are common knowledge. 

Between 1677 and 1763 these colonists were engaged in six different 
Indian wars, occupying altogether thirty-six years. The wilderness 
beyond the settled frontier was traversed over and over again by those 
engaged in military expeditions to the northward, as well as by 
hunters and other explorers. The people of the province were there- 
fore entirely familiar with the great number of inland lakes and ponds 
with which the unsettled regions were interspersed. The ordinances 
or declarations of right, relating to these so-called great ponds, had a 
substantial basis in an adequate knowledge on the part of the colonists 
of the geography of northern New England and the present and 
future utility of the inland ponds as the common property of the 
people of the towns and of the provinces. 

It would seem to have been a part of the natural means provided 
for the sustenance of these people, while working out a destiny pre- 
scribed for them, that they should have free access to a food supply 
not enclosed by impassable barriers, not made private property by the 
laws of the country, and not policed by wardens having a duty under 
the law to preserve all the fish inhabiting, and all the wild fowls fre- 
quenting such waters for the private delectation of great or petty 
landlords, resident or non-resident in the country. The fact is tersely 
stated in the opinion of the court in the case of Cotrill v. My rick, 12 
Maine 222. 

"Fish were much relied upon in early times as a means of sub- 
sistence afforded by the common bounty of Providence. ' ' 

It has already appeared that a title to a large part of the lands 
lying in the province of New Hampshire had been granted by the 
council of Plymouth in the County of Devon to John Mason and his 
heirs. These proprietors never obtained and enjoyed actual possession 
of their estate, neither did their grantees, until 1746, when the title 
11 



162 



passed from -them. In 1681, however, Robert Tufton Mason, at that 
time the representative of these proprietors, when charged with the 
purpose to deprive the people of New Hampshire of their right of fish- 
ing and fowling, declared that he had no such purpose, and publicly 
promised not to interfere with the right upon the continued exercise 
of which the people were then insisting. 17 N. H. State Papers, 
550; Id., Fortescue's Calendar. The people of New Hampshire were 
pioneers from the beginning of the settlements in 1623, down to a 
period long subsequent to the Revolution. It is, perhaps, impossible 
to adduce evidence of the actual exercise of these rights in all the 
great ponds of the state in this long period. Some things, however, 
must be regarded as necessary concomitants of the life of these 
pioneers, and the exercise of such rights as are here in issue can well 
be presumed to have been inevitable from the circumstances and neces- 
sities of a frontier people inhabiting northern New England. 

(II.) 

THE REPEATED FORMAL ASSERTIONS OF THIS RIGHT 
IN THE ONLY LEGISLATIVE BODY THAT EXISTED FOR 
THEM, AT INTERVALS, IN A PERIOD OF FIFTY YEARS, IS 
. UNIMPEACHABLE EVIDENCE OF THE EXISTENCE OF CON- 
DITIONS AND USAGES WHICH MADE THE EXERCISE OF 
THE RIGHT CONTINUOUSLY AS WELL PROVEN AS ANY 
MATTER CAN BE, BY REPEATED AND FORMAL LEGISLA- 
TIVE DECLARATIONS. 

A declaration of the right of public fishing in the creeks in the terri- 
tory of the present half dozen towns, which have been carved out of the 
original town of Exeter, was made in legal form by the town meeting 
or town corporation of Exeter, prior to the union of New Hampshire 
with Massachusetts Bay. 

In 1641 New Hampshire was a party in the General Court of the 
United Colonies to a declaration of this right to be exercised in great 
ponds and rivers, as well as bays, creeks and coves. Whitmore's Ed., 
Colonial Laws, 1889, 170. 

In 1647 these people again declared the right, particularly specify- 
ing its meaning and extent, at the same time denning the term ' ' great 



163 



ponds," which had been employed in the Body of Liberties in 1641, 
and making it clear that the right belonged to every man. Again, 
their representatives, in 1648 and 1649, by a revision of these declara- 
tions of laws and liberties, repeated what had been previously formu- 
lated on this subject. 

In 1660 another promulgation of the laws and liberties was made 
in print by the representatives of the people. 

Again, in 1672, a publication was made of these same laws and lib- 
erties in printed books. 

In 1680 the people of New Hampshire, by their representatives in 
the General Assembly of the new province government, which had 
been established over them by the king, by article 14 of part two of 
their General Laws, renewed the assertion, which had been before 
repeatedly and formally made by the adoption of the laws and liber- 
ties declared by legislative action in the time of the union, which in- 
volved a reassertion of these same rights of fishing and fowling in the 
great ponds as belonging to the public. 

In 1686 the king himself confirmed the laws of the several provinces 
and colonies which were united in the Dominion of New England, 
and by that act it would be intended that both written laws and 
usages and customs, having the force of law, were comprehended. 

In 1690, in the absence of a province government erected by the 
crown, the people of New Hampshire, both by action of the towns, 
and by their own election, manifested by popular petitions, addressed 
to the General Court of Massachusetts, voluntarily made themselves 
again a part of that government. It was at that time generally known 
that the General Court of Massachusetts Bay had, in so far as it 
was possible for them so to do, revived and renewed the laws and lib- 
erties which had been declared and adopted in the first period of their 
colonial existence. To this ratification of the ancient laws and legal 
usages New Hampshire became a party by the act of union. The 
people of both provinces were governed by these laws until 1692. 

If it were to be assumed that all these political organizations of the 
people of Massachusetts Bay and of the people of New Hampshire, 
down to the time of the establishment of new governments for each of 
them in 1692, had been invalid, nevertheless the fact must remain 



164 



undisputed that there were annual conventions of representatives of 
the people, who at intervals, for a period of fifty years, for some 
reason insisted upon the declaration of certain propositions which 
describe rights, privileges and liberties appropriate to the circum- 
stances and conditions of such a people. 

All this is submitted as the evidence of a certain continuous, unin- 
terrupted usage, exercised by the people in possession of all the lands 
in the province that had been put to civilized uses, and a usage involv- 
ing a right which had been conceded as one that would not be inter- 
fered with, but actually approved, by the proprietor of an outstanding 
title, who had always been excluded from actual possession. 

The evidence of the usage considered from either one of these points 
of view, whether the pre-existing colonial governments are regarded as 
legal or illegal, whether their legislation is regarded as de jure or de 
facto, or neither the one nor the other, that it was definite and unmis- 
takable and had existed from the beginning of the settlements is not 
controverted, much less overthrown. 

It should also be stated in this connection that Plymouth Colony, for 
the people who made the first New England settlement, made a legis- 
lative declaration of the right of public fishing and fowling in all the 
waters within the lands comprehended by their patent. 

(III.) 

THE EXISTENCE OF A LEGAL USAGE POSSESSING ALL 
THE ESSENTIAL ELEMENTS OF A PRINCIPLE OF COMMON 
LAW IN THE PROVINCE IN 1692 HAVING BEEN PROVEN, 
THE PRESUMPTION OF CONTINUANCE MAY BE INVOKED, 
AND THAT PRESUMPTION, AS IT WILL BE HEREAFTER 
SHOWN, IS NOT ONLY NOT REBUTTED, BUT IS SUSTAINED 
BY CONTROLLING EVIDENCE RELATING TO THE SUBJECT 
IN THE SUCCEEDING ONE HUNDRED AND FIFTY YEARS. 

1. There is no question but that a common law has always existed 
in Massachusetts and Maine similar to that declared in the New Hamp- 
shire cases from Concord v. Robertson to Dolheer v. Company. It has 
been shown that the same laws, customs and usages were operative in 



Insert, page 165, line 26, after the name "Nottingham West," the 
following, viz.: "Mason, New Ipswich, Rindge. " 

Instead of word "39," page 165, line 30, read the word "32." 

Page 165, lines 32, 33, strike ont "west of the Merrimack, and at 
earlier periods east of that river, ' ' and insert the following, viz. : 
"west of a line running north and east of the Merrimack and three 
miles from it." 

Page 165, line 34, after the word "Franklin," insert the following: 
"not to mention other sections where such jurisdiction was exercised." 



165 



that part of New Hampshire which was settled in the southeast section 
between 1641 and 1679 ; between 1686 and 1689 ; and between 1690 
and 1692. On this territory there are now 28 towns, namely, Ports- 
mouth, Newcastle, Greenland, Rye, Exeter, Stratham, Newmarket, 
South Newmarket, Epping, Brentwood, Fremont, Hampton, North 
Hampton, Hampton Falls, Kensington, East Kensington, Kingston, 
Danville, Sandown, part of Seabrook, Dover, Madbury, Somersworth, 
Lee, Rollinsford, Newington, Durham, Isles of Shoals. (New Hamp- 
shire State Papers, Vols. 11, 12, 13, 24, 25, Titles of the Towns men- 
tioned, passim.) 

The fact of the political union covering all these towns for a period 
of half a century is the best evidence of the existence of the same 
legal usages in those that at the time mentioned constituted almost all 
of the inhabited region. (See accompanying map.) 

Another group of towns now a part of New Hampshire had been in 
all the colonial period after their settlement recognized and actually 
organized and constituted as a part of Massachusetts Bay until the 
settlement of the line in 1740. It is within bounds to assert that the 
legal .usages which prevailed in Massachusetts in 111 years of the un- 
disputed actual jurisdiction of Massachusetts over these towns had in- 
grained those usages as just as much a part of the customs of the people 
as they were the customs of the people south of the line as finally 
determined. These towns, cut off from then existing towns in Massa- 
chusetts by the establishment of the boundary of 1740, were South 
Hampton, Plaistow, Hampstead, New Salem, Newtown, Pelham, Dun- 
stable, Hollis, Raby or Brookline, Nottingham West, Hinsdale. (Au- 
thorities and map above mentioned. ) 

Another and very much larger group of Massachusetts towns occu- 
pied by Massachusetts people under Massachusetts jurisdiction north of 
the line as finally determined was constituted of 39 of her other grants 
made prior to 1740. This was under the claim which Massachusetts 
made to jurisdiction west of the Merrimack, and at earlier periods east 
of that river as far north as the junction of the Winnipiseogee and 
Pemigewasset rivers in the present town of Franklin. The only one of 
these grants which was contested to such an extent that the questions 
were carried to the privy council, was Concord, then named Penacook. 



166 



It was decided subsequently to 1740, in England, on appeal that the. 
title of the Massachusetts grantees, they being the first occupants, was 
good as against a prior grant of the township of Bow on the same terri- 
tory by the province of New Hampshire, not followed by settlement, on 
the ground that the jurisdiction of Massachusetts under these circum- 
stances was valid de facto. (History of Concord, N. H., chapter on 
the Bow Controversy.) 

These townships were Acworth, Alstead, Amherst, Bedford, Bos- 
cawen, Bradford, Canterbury, Concord or Penacook, Deering, Dunbar- 
ton, Goffstown, Groton, Hancock, Henniker, Hillsborough, Hopkinton, 
Keene, Lempster, Litchfield, Londonderry, Lyndeborough, Manchester, 
Milford, New Boston, New Ipswich, Pembroke, Peterborough, Ray- 
mond, Rindge, Salisbury, Sharon, Sullivan, Swanzey, Temple, Wal- 
pole, Warner, "Washington, Weare and Winchester. They swarmed 
with immigrants from Massachusetts, bringing with them, as a matter 
of course, the same usages and the same notions of law that they had 
practiced and entertained in what was supposed to be other parts of 
the same commonwealth or colony. (24 N. H. State Papers, preface.) 

It cannot be expected, and it is never assumed, that the mere fact of 
change of jurisdiction from one province to the other in 1640 would 
effect any change in the legal customs of the people. 

There are three groups of towns which, in the colonial period, would 
be found to be either actual Massachusetts plantations within the pres- 
ent boundaries of New Llampshire settled by the grantees of Massachu- 
setts, or towns which were then parts of the old towns located on the 
line between the provinces as eventually settled, and outgrowths of the 
four original towns, the parent municipalities for 28 later towns, in- 
cluding the Isles of Shoals as one of them. These three classes of 
towns are named in the tables and are indicated by a map which will 
be found in the appendix. 

It will be observed that actual settlement of the province of New 
Hampshire as far as it had been accomplished in 1740 had been within 
the territory of the four original towns (including the Isles of Shoals), 
and the territory of the other two Massachusetts groups which have 
been described. To be more specific, the Ashuelot group, viz., Hins- 
dale, Winchester, Swanzey and Keene, -mark the limits of settlement in 
the southwestern part of the state, all Massachusetts towns down to 



Page 166, line 9, strike out the name "Deering." 

Page 166, line 10, strike out the names, "Groton, Hancock." 

Page 166, line 12, strike out the name "Milford." 

Page 166, line 13, strike out the names "Sharon, Sullivan, Temple." 

Page 166, line 14, after the name Winchester add an asterisk, 
thus # , and in the bottom margin of this page add the following words, 
viz. : 

' ' * Massachusetts Bay Colony granted tracts of land and thus exer- 
cised jurisdiction in territory of Deering, Groton, Milford, Sharon, 
Sullivan, Hancock and Temple, therefore they are included in that 
part of the map which is colored green, although the Bay Colony did 
not actually grant charters for those seven towns. ' ' 



167 



1740. The same is true of the boundary line group, viz., Rindge, New 
Ipswich, Temple, Hollis, Amherst, Dunstable, Nottingham West, Pel- 
ham, New Salem, Hampstead, Plaistow, New Town, South Hampton 
and Merrimack. 

The Merrimack River group would include the settlements up the 
valley of that river to and including Boscawen and Canterbury. Of 
these towns, adopting the present nomenclature, settlements had been 
effected in Windham,- Londonderry, Litchfield, Merrimack, Bedford, 
Raymond, Manchester, Bow, Hooksett, Pembroke, Concord, Boscawen 
and Canterbury. The only towns therefore, which appear to have 
been settled in 1740 that are not assignable to one or the other of these 
groups are Windham, Chester, Hooksett, Nottingham, Allenstown, 
Bow, Rochester and Barrington. Only 25 as they are now named (and 
on account of divisions occurring from time to time the number in 1760 
would be much less), were added to the settled territory in the prov- 
inces between 1740 and 1760. All of these settlements were contiguous 
to towns in the Massachusetts group and occupied by immigrants pre- 
sumably carrying with them the Massachusetts and early New Hamp- 
shire usages, customs and common law. 

Already in these regards there is every reason to suppose the people 
on both sides the undetermined line of political jurisdiction had be- 
' come homogeneous in legal usages as well as in political and ecclesiasti- 
cal policy. As elsewhere shown, moreover, in the succeeding 20 years 
the new Masonian proprietors had conveyed their legal title to all the 
rights which could be asserted under the Masonian patents to the people 
in common in the settled towns. These facts of territorial and political 
jurisdiction of Massachusetts north of the present line, though possibly 
not in these days apprehended in their full extent and meaning, are, 
nevertheless, a weighty part of the evidence of the existence in these 
township colonies of Massachusetts of the same legal usages and legal 
customs, in other words, the same principles and elements of local 
common law, that were established in the parent commonwealth. 

2. It will suffice in this connection to call attention to the opinion of 
Chief Justice Shaw in the case of Commonwealth v. Alger, 7 Gush- 
ing, in which the history of a common law existing necessarily 
wherever the jurisdiction of Massachusetts extended, whether in Maine 



168 



or New Hampshire, is reviewed for an account of the extension of the 
customs of which the ordinance of 1647 is evidence, back into a period 
prior to the time when published reports of decisions appeared in 
either state. While it is, of course, difficult to trace any particular 
legal usage in the absence of reported decisions, nevertheless, in this 
case the conclusion is on all the evidence inevitable that the usage ex- 
isted all through the the latter province period. The conditions in 
Maine and New Hampshire all tend to establish the analogy in respect 
to these usages between Massachusetts, as now deliminated, and the 
more northerly parts over which its people were settled and over which 
it exercised extended and protracted jurisdiction at various periods. 

3. The conditions which would intensify the insistence of the people 
of New Hampshire upon their continuance in the exercise of the enjoy- 
ment of their ancient legal customs were more influential upon them 
than upon the people residing in the Bay Colony, because they were 
in possession of their lands, so far as they were enclosed within the 
Masonian curved line, and because they were always on the defensive 
against the Masonian claim, from the latter part of the reign of King 
Charles II to 1746. The agitation of this claim took practical and 
threatening form at repeated intervals. Farmer's Belknap, Hist. N. 
H., 53, 85, 90, 96, 117, 148, 251. Under these circumstances they 
would naturally adhere with intensified persistence to their ancient 
legal usages by which they were accorded public rights under the 
rules of property in the great ponds which were regarded as laid in 
common. 

Copp v. Henniker, 55 N. H. 187 ; 
Concord v. Robertson, 66 N. H. 12. 

4. In the further comparison of the development of the local com- 
mon law in each of these provinces as referable to the pre-existing cus- 
toms and legal usages of the first colonial period, it will be discovered 
that certain events related to legislation in Massachusetts Bay would 
operate normally less favorably to the continuance of the early legal 
customs, those, for instance, evidenced in the ordinance of 1647, in 
Massachusetts Bay than in New Hampshire. 

The first act of the Legislature of the Province of Massachusetts 



169 



under the charter of 1691 provided for continuing the local laws. 
This act was dated June 15, 1692. It provided for the continuance 
of the laws previously made by the late governor and company of 
Massachusetts Bay and the late government .of New Plymouth not 
being repugnant to the laws of England nor inconsistent with the new 
constitution and settlement by the present charter, until November 10, 
1692. This act was disallowed in the privy council August 22, 1695. 
The action of the home government was explained in a letter to the 
government of the province, in which it appeared that the objection 
was not to the principle of the continuance of the laws, but it was sug- 
gested that the local legislation ought to specify the acts of the previous 
governments that were to be continued in force by positive enactments. 

Touching this subject, the Supreme Court of Massachusetts, by 
Shaw, chief justice, 13 Pick. 258 in 32, say: 

"A question was rather suggested than distinctly argued by the 
counsel, whether the right of proprietors of land bounding upon the 
sea or salt-water, in that part of the commonwealth, have propriety to 
low-water mark. This suggestion is founded upon the consideration, 
that by the common law of England, the right of soil in the shores of 
the sea is in the sovereign, and as the colony of Plymouth was not 
within the limits or jurisdiction of Massachusetts, when the colony 
ordinance of 16-11 was adopted by Massachusetts, the rule of the com- 
mon law must prevail. 

"It is true, that in terms, the colony ordinance of Massachusetts, 
adopted, confirmed and continued in force, by an express provision of 
one of the earliest acts of the provincial government, after the union 
of the three colonies of Massachusetts, Plymouth and Maine, by the 
charter of 1692, does not (in terms) extend to the colony of Plymouth, 
as a rule of positive law. It is equally true, that the general laws of 
each did not become common to all, because the act of 1692 (Ancient 
Charters, &c, 213, 229) provides, that all the local laws, made by the 
late governor and company of Massachusetts Bay, and the late govern- 
ment of New Plymouth, not repugnant &c, shall continue in force, for 
the respective places for which they were made and used. But though 
the rule in question cannot be traced to this source, as a rule of positive 
law, we are of opinion that it is still a settled rule of property in every 
part of the State and founded upon a basis quite as firm and immov- 
able ; that being a settled rule of property, it would be extremely inju- 
rious to the stability of titles, and to the peace and interest of the com- 



170 



mnnity, to have it seriously drawn in question. It is founded upon a 
usage and practice so ancient, immemorial and unvarying, that with- 
out tracing its precise origin, it must now be deemed a rule of common 
law proved by such usage. ' ' 

Again, in 1851, the same court by the same judge say, Common- 
wealth v. Alger, 7 Cush., 76 : 

"It was remarked by the court in the case of Storer v. Freeman, that 
the colony ordinance was annulled with the charter, by the authority 
of which it was made. The strict correctness of this remark may per- 
haps be doubted, even though the decree in chancery of 1685, by which 
the charter was adjudged forfeited, were regular and valid, which we 
believe has never been admitted here. In general, a revolution or 
change in the form of political government does not annul the munici- 
pal laws regulating property, or divest rights of property acquired 
under them. If the remark was intended only to intimate that the jus 
publicum, the right of governing, controlling, and regulating the sea 
and sea-shores, and the powers and prerogatives of the king for the 
protection of public rights, which had been transferred to the colonial 
government by the charter, would be taken away by a valid revocation 
of that charter, without affecting private rights already vested, it may 
be admitted to be correct. But, however that may be, it has become 
a mere question of speculation, and ceased to be of any practical im- 
portance, even within the old territory of the colony of Massachusetts, 
because the same rights and powers, and all doings under the charter, 
were revived and confirmed by the province charter; and by the very 
first act under the provincial government, making a temporary pro- 
vision, and by a subsequent act, passed soon after, continuing the for- 
mer in force and making it perpetual, it was declared that all the local 
laws made by the late governor and company of Massachusetts Bay 
and New Plymouth, do remain and continue in force in the respective 
places for which they were made. Ancient Charters, 213, 229. ' ' 

Again, in Attorney General v. Company, 152 Mass. 447 (1890), the 
court by note and J. say: 

"By that code (that of 1649) as appears by the compilation of 1660, 
it was provided 'that no town shall appropriate to any particular per- 
son or persons any great pond containing more than ten acres of land 
* * # and for great ponds lying in common, though within the 
bounds of some town, it shall be free for any man to fish and fowle 
there, and may pass and repass on foot through any man's propriety 



171 

for that end, so they trespass not upon any man's corn or medclow. ' 
Anc. Chart. 148. Colonial Laws, 1660-72, (Boston reprint of 1889,) 
pp. 37, 86, 170. The effect of these provisions has often been consid- 
ered by this court, and it is held that the title to great ponds which 
had not previously been granted is in the commonwealth for the benefit 
of the public, and, if a pond had previously been granted to a town, 
and had not passed to a private person, the legal title remains in the 
town, but the beneficial right is in the public. Commonwealth v. Box- 
bury, 9 Gray, 451. West Boxhury v. Stoddard, 7 Allen, 158. Wa- 
tuppa Beservoir v. Fall Biver, 147 Mass. 548." 

It does not appear whether the repeals of the confirmatory acts 
above referred to, which appear to have taken place in the privy coun- 
cil, were ever published in the province in accordance with the re- 
quirements of the charter above quoted. 

It does not appear whether in the cases from which the foregoing 
quotations are taken the court took the fact of repeal into considera- 
tion, or whether it had been brought to their attention. 

However these things may be, the argument is apparent that New 
Hampshire w T as never embarrassed by the repeal in the privy council 
of any of her acts confirmatory of the pre-existing statute law. There 
was, therefore, much less difficulty, having reference to the subject of 
the king's disallowances, in the continuation of the early laws as evi- 
denced in the common law of the province and state, in New Hamp- 
shire than in Massachusetts. If, therefore, the courts of either state 
had been unable to recognize the existence of the principles of the ordi- 
nance of 1647 in the later expositions of the common law, that consid- 
eration would be more likely to have effect in Massachusetts than in 
New Hampshire. 

The principle was found to have continued in the common law by 
the courts in Massachusetts, and it has had repeated endorsement there 
by the highest judicial authority. With greater reason the early courts 
in this state recognized the same principle as a continuing element in 
the common law. 

5. While it has been shown that the Masonian proprietary in 1680 
conceded the public right of fishing and fowling in the territory cov- 
ered by the patent and while there is no evidence whatever of any 
change of the attitude of the proprietor and his successors in the title 



172 



with respect to the exercise of public rights of fishing and fowling in 
inland waters substantially as those rights were declared by the ordi- 
nance of 1647, and while all this is strong evidence tending to sustain 
the theory of a persistence of these rights and a continued exercise of 
them in the later colonial period, much stronger evidence in this behalf 
remains to be adduced, — evidence which, it is submitted, is conclusive 
on the contentions in the present case so far as they relate to the com- 
mon law in the province prior to the adoption of the act of 1777 and 
article 89 (90) of the constitution of 1784. 

As already stated, there were two groups of towns in the territory 
of the Masonian patent which are identified as (1) those established 
by custom and usage and recognized as municipal corporations by the 
province authorities, together with those actually granted by the prov- 
ince governors, and (2) those that were granted by Massachusetts 
within the Masonian curved line. Immediately after the purchase of 
this title by the proprietary of 1746, which was what would now be 
termed a syndicate of prominent men of the province, a quitclaim was 
made of all the title and right which these proprietors had as suc- 
cessors to the Masonian title to the then inhabited towns, that is, to 
the people of the towns generally, ' ' in and unto the same in every part 
thereof to us [them] in any manner belonging either to houses, lands, 
rivers, woods, mines, minerals, and appurtenances. ' ' The towns named 
in this conveyance were Portsmouth, Dover, Exeter, Hampton, Gos- 
port, Kingstown, Derry, Chester, Nottingham, Barrington, Rochester, 
Canterbury, Bow, Chichester, Epsom, Barnstead. 

29 State Papers, 216. 

They also quieted the proprietors of the towns on the west side of 
the Merrimack which had been granted by Massachusetts before the 
establishment of the line, so that these Massachusetts people went on 
peaceably with their settlements, in full seizin by conveyances to the 
people of each town of all that the Masonian title included, wherever 
settlers were in possession under other titles. 

Farmer's Belknap 299; 27 and 28 State Papers, passim, as for ex- 
ample, Hopkinton, Vol. 27, page 373. 

The fact must not be overlooked that the French and Indians kept 
a line about these settlements, red with blood and flame, and restrained 



173 



their extensions until the end of the war in 1760. Prior to that date, 
inhabited New Hampshire was confined within very restricted limits. 
The legal usages and customs of the people were consequently those 
maintained and exercised within that area and whatever of common 
law was established, was established there before 1760. The people 
of that section and a large emigration from Massachusetts carrying 
with them, as must be presumed, the common law of their own colony, 
overspread a considerable part of the province to the northward in 
the fifteen years between 1760 and 1775. 

The patent to Mason in 1629 purported to convey, among a great 
number of other things described, marshes, waters, fishings, hunting, 
hawking and fowling. The same description appeared in the grant of 
1635. All these were quitclaimed to the people at large, who consti- 
tuted inhabited New Hampshire in 1746 and 1748. 

It is self-evident that there could be no diversity in the common law 
evidenced by the facts herein presented in different parts of the prov- 
ince. The emigration which overflowed the more northerly parts after 
1760 necessarily carried with it and established wherever it went the 
ancestral customs and legal usages, in other words, the common law of 
the province as it was before this emeute. 

6. The province of New Hampshire passed into its last political 
period in 1692, under a new commission from the king, which recog- 
nized existing laws and expressed the royal approval of a system of 
continuous and developing local law. Nothing appears in the com- 
mission or instructions which accompanied it to annul any pre-existing 
laws or legal customs. The last system of laws in force over the prov- 
ince were those of the time of the first union, including the declarations 
of the acts of the ordinance of 1647. In the absence of reported court 
decisions in the interval between that time and the beginning of 
Smith's Reports, 1803, it cannot be said that the province had no com- 
mon law and it cannot be said without substantial proof that the pre- 
existing common law was changed in that interval. The act of 1777 
and article 89 (90) of the constitution of 1784 pre-supposed the exist- 
ence of a common law in the province, local to it and differentiated 
from the common law in England by local usages having the force of 
law, and local statutes changing the common law, as commented upon 



174 



by the court in State v. Rollins, 8 N. H., in the opinion of Chief Justice 
Parker. If a message delivered at one end of an Atlantic cable, sub- 
merged for thousands of miles beyond human reach or human observa- 
tion, appears in substantially its original terms and substance on the 
other side of the ocean, the conclusion is self-evident that the message 
has traversed an unseen avenue without accompaniment of observers 
and reporters of events and incidents in its progress from the starting 
point to the destination. If legal customs and usages shown to be 
active, potent and continuing at one period of time, are found to re- 
appear in the opinions and decisions of courts whose province it is to 
make authoritative declarations of them, and in the visible and noto- 
rious practices of the people of a state, the conclusion is not only legiti- 
mate that those usages have continued in the interval, however long it 
may be, but it is inevitable, in the absence of material contradictory 
evidence. 

7. The evidence of the continuance of these usages takes positive 
form in two series of court decisions pronounced within the first 65 
years of the last century and in a third series pronounced in the past 
15 years. 

One of these groups of cases and opinions recognizes the declarations 
of the ordinance of 1647 as a part of the colonial law of New Hamp- 
shire and recognizes it as a part of the common law of the state subse- 
quent to the constitution of 1784. 

The other group of cases would be classified topically under the law 
of boundaries, and are continuous from the decision in State v. Gilman- 
ton, 9 N. H., 1838, and State v. Gilmanton, 14 N. H. 184, to State v. 
Sunapee Dam Company, decided in 1900. 

(1) As to the first group of cases, the proposition stands upon the 
authority of Chief Justice Jeremiah Smith in an opinion in Thompson 
v. Bennett, 1814, Smith's Reports, 337. The court, by Judge Smith, 
say: 

" It is very certain that our law, till 1679, was the same as the Massa- 
chusetts and equally clear that the people of New Hampshire were, 
at that time, much attached to the Massachusetts government and laws. 
I have no doubt and from what I see in the judicial records there can 
be no reason to doubt that our statutes were Copied from Massachu- 
setts." 



175 



In his treatise on the Probate Law of New Hampshire, compiled 
about the year 1800, published in part in Smith's Reports, the judge 
says (page 503) : 

' ' During the Union with Massachusetts, many of the usages and cus- 
toms which now obtain, and which form a part of our common law, 
were formed and originated. 

"Nearly all the acts of our Legislature which are now extant, and 
which were enacted between 1680 and 1718, were copied from the 
Massachusetts Acts; and it is highly reasonable to conclude that our 
court, except where acts of our own Assembly otherwise directed, con- 
tinued to be governed by the same principles and maxims which gov- 
erned them during the union of the two Provinces. ' ' 

The case of Thompson v. Bennett is found in Smith's Reports, p. 
337. 

The last part of the paper of William Smith, son of Judge Smith, 
published in 1824, and republished in New Hampshire Bar Association 
Proceedings, Vol. 1, p. 676, should be read in the same connection, 
as it undoubtedly reflects the opinion and expresses the information 
of Judge Smith. 

William Smith was a lawyer, a son of the elder Jeremiah Smith, 
who practiced his profession in Exeter, where the ex-chief justice re- 
sided. The year of the publication of this article he was a member of 
the Legislature (Bell's Bench and Bar, 651). 

In conclusion of the paper, he says : 

' ' So that the laws to winch the good people of this state are subject 
are : 

"1. The Constitution of the United States : the laws of Congress made 
in pursuance thereof, and all treaties made under the authority of the 
United States. These are the Supreme Law of the land, and control 
the Constitution and Laws of the States where they differ. They bind 
the Legislature, and what is still more, the people in their collective 
capacity. 

"2. The Constitution of this State. This controls the Statute and 
common law of the state and repeals the common law. 

"3. The statutes and resolves enacted and made by the legislature. 
This controls and repeals the common law. 

' ' 4. The common law, or the usages and customs. The basis of this 
iaw is freedom, for it springs from the voluntary consent of the people. 



176 



"Whoever makes the statutes, the people make the common law. Our 
common law may be referred to three sources ; 

" (1) Such parts of the common law of England as were deemed 
suitable to our condition. 

" ( 2 ) Usages which insensibly grew up in the country when we were 
in a manner neglected by the parent state, and almost independent of 
it. 1630-1660. 

"(3) The statutes, orders, and ordinances which were framed by 
the Legislature before 1690, and which no longer bind as statutes, but 
which still retain their influence, because they were agreeable to the 
genius, manners, and habits of the people, and therefor they were wise 
and good laws." 

There was a time, says Judge Jeremiah Smith, the editor of Smith's 
Reports, when the senior Smith was not aware of the existence of the 
Cutt and Cranfield laws (note, page 529). Chief Justice Smith makes 
the same statement in Thompson v. Bennett. The state copy, redis- 
covered before 1831, and the English copy were the only ones that sur- 
vived in manuscript. They were discovered, however, probably before 
1824, and some parts printed in 1831, several years before the death of 
the senior Smith. 

In State v. Rollins, 8 N. H. 561, the court, by Judge Parker, say that 
the common law in New Hampshire as it existed prior to the American 
Revolution was the result of change and modification by local enact- 
ment and local usage. 

The reading from the next opinion, coming from the same authority 
in Nudd v. Hobbs, 17 N. H. 526, should be made with the fact in mind 
that the ordinance of 1647 related to inland ponds as well as to land 
between high and low-water mark on the seashore. 

After remarking that the rule of the ordinance of 1647 as to the so- 
called flats is a settled rule of property in every part of Massachusetts, . 
Judge Parker proceeds to say that : 

' ' By the union of the settlements of New Hampshire with the Colony 
of Massachusetts the laws of the Massachusetts Colony were extended 
over those settlements and justice was administered here according to 
the rules there prescribed. This union continued until 1679, and dur- 
ing that time the ordinances relating to lands bounding on the sea 
shore would seem to have been in force here as a part of the laws regu- 
lating the title to real property. If this be so, it may perhaps be held 



177 



that the first enactment of the General Assembly of the Province of 
New Hampshire, under the commission constituting a President and 
Council for its government, which provided that the laws they had 
been formerly governed by should be a rule in judicial proceedings so 
far as they would suit our constitution, and not be repugnant to the 
laws of England, until others were legally published, included the 
ordinance of 1641 [16471, s0 that it has been transmitted as the rule 
in relation to this species of property to the present day. ' ' 
Also, see State v. Rollins, 8 N. H. 561. 

In Clement v. Burns, 43 N. H. 621, 1862, Judge Bellows said: 

" When we consider that a union was effected in that same year 
(1741), between New Hampshire, or so much of it as was then settled, 
and Massachusetts, which was continued for about forty years, making 
them practically one government, we should naturally expect that the 
same usages would spring up here under that ordinance, especially as 
such was actually the case as to one shore of the Piscataqua River, 
which then, as now, afforded the principal part of the navigable waters 
of this state. That a similar usage did spring up, and has always 
existed, giving to the riparian owner an interest in the shore of navi- 
gable waters, subject only to the paramount right of navigation, which 
interest he may vindicate by suit, we think there is good reason to 
believe, and therefore for the entry upon the shore below the wharf 
and carrying away the soil and the manure, the plaintiff is entitled 
to recover; but it must be only nominal damages." 

Judge Bellows incidentally remarks, also, that these provisions of the 
colonial ordinance are not rules of positive law, a fact which is gener- 
ally conceded upon all the authorities. 

Before turning from this subdivision of the title, it is necessary to 
revert to the opinion in State v. Rollins, 8 N. H. 561, where it is stated 
that the act of 1680, time of Cutt, provided that: 

"No act, imposition, law or ordinance be made or imposed upon us, 
but such as shall be made by the said Assembly, and approved by the 
President and Council from time to time." 

Further on (562), the court say: 

"Governor Wentworth, in his last message to the Assembly of the 
Province, referred to the Commission appointing President Cutts and 
a Council, as having 'laid the foundation of the Constitution, by which 
12 



1T8 



the Province hath since been governed;' and said, 'the laws of the 
Province rest upon this foundation.' " 

Again, the court say, on page 561, that there was another enactment 
in the time of Cutt, which provided that the laws they had formerly 
been governed by should be a rule in judicial proceedings, "so far as 
they will suit our constitution, and not be repugnant to the laws of 
England, ' ' until others should be legally published * 

Thus it will be observed that the court in this case was not only 
aware of the existence of ,the Cutt laws at this time, 1837, but it was 
recognizing and quoting the act of 1680, which made the laws of the 
time of the union the continuing laws of the new province. 

The status of the province law as it was established and determined 
by the legislation of this period, according to this opinion, page 561, 
so continued until the period of the Revolution. 

All this evidence bears upon the question whether the conditions, 
customs and usages, evidenced by the declarations of the General Court 
of the united colonies in 1641, 1647, had continued to be recognized 
and approved by the Supreme Court as the basis of legal usages having 
the force of law and recognized as a part of the common law of the 
state and province at the time of these decisions. And it is all in favor 
of the claim that the principles of public right in the "great ponds " 
declared in 1647, continued to be recognized as elements of the com- 
mon law till the time of these decisions. 

It is pertinent to remark that there is no utterance in the whole 
body of the case law of New Hampshire relating in terms to the dec- 
larations of those ordinances that can be construed as a denial (in con- 
nection with an actual mention of them) of the continuance of the prin- 
ciple declared, so far as it relates to the inland ponds which are de- 
scribed in legal phraseology as the "great ponds." 

( 2 ) The other group of cases to which attention will now be directed 
will include State v. Gilmanton, 9 N. H. 461, 1838, State v. Gilmanton, 
14 N. H. 467, 1843, both decided in a period long prior to the acquisi- 
tion of the title in North Pond by the plaintiff corporation in the case 
at bar or its immediate ancestors in title. 

In the first case mentioned the rule laid down is terse and unam- 
biguous. 



M 



179 

In relation to grants bounding on ponds, lakes or other large bodies 
of standing fresh water, the principle that governs land bounding on a 
stream does not apply. In case of ponds the grant extends only to the 
water's edge. 

Here the opinion of the court is delivered by Chief Justice Parker. 

In State v. Gilmanton, 14 N. H. 478, the opinion of the court is by 
Gilchrist, justice, and the rule of the former case is repeated in terms. 
He says: 

"If it [granted land] strikes any large body of standing water, by 
whatever name it is called, it is bounded by the water 's edge. ' ' 

In the application of the law of boundaries in this state this rule 
has never been modified. It is consistent only with the existence of a 
rule which limits private ownership on the great ponds at the water's 
edge. These cases as effectively reinforced the doctrines of the com- 
mon law of the province and state by which the public hold title to the 
beds of these ponds, the waters, the fishings, the fowlings, and the 
other uses, as though it were declared in them that they were based 
upon such a rule of the common law existing in the state. These rules, 
as the law of boundaries, were declared by the same court that, in 
Nndd v. Hohbs, affirmed the continuing validity of the ordinance of 
1641-1647. 

State v. Gilmanton is an authority on the law of boundaries recog- 
nized in all the elementary works and the leading contemporary cases 
on that subject. 

In fact, during the first half of this century there was no other rule 
i ecognized in the law of boundaries by the common law of the most im- 
portant middle and eastern states. Commissioners v. People, 5 Wend. 

There is a group of two cases, of which State v. Roberts, 59 N. II., is 
one, both decided at the same period and, as to what is said on this 
rjarticular point, decided upon a very narrow and restricted view of 
the subject and without examination of the antecedent cases, that are 
claimed to be inconsistent with the cases decided in the earlier part of 
the century. However that may be (and the question will be a subject 
for special argument in another connection), this apparent lack of 
harmony in the cases disappeared in a short time and the case law 



180 

again become permanently consistent with State v. Rollins, State v. 
Gilmanton and Nudd v. Hobbs. 

It may well be noted that the judges who delivered the opinions of 
the court on a manifestly inadequate examination of the history of the 
common law of the state relating to this subject, afterwards upon a 
full and thorough investigation for the disposition of the cases decided 
in 1889, both concurred in the declaration of the common law which 
has since been not infrequently repeated and is still unquestioned in 
the state decision. All the judges sitting in the earlier cases, who re- 
mained on the court and were qualified to act in 1889, concurred in the 
conclusion then reached and announced. 

Thus, in Concord Co. v. Robertson, 66 N. H. 4, it is said : 

"When land, granted by the government to individuals to private 
use, is bounded by such a pond, the boundary is the water 's edge. San- 
bornton Bay is a large pond. It does not appear that there had been 
any doubt on these points in this state before the decision in the G-il- 
manton case in 1838. Since that time they have not been open to 
question. ' ' 

In State v. Sunapee Dam Co., 70 N. H. 461, opinion by Blodgett, 
chief justice, 1900, the law of State v. Gilmanton is again endorsed. 

The evidence of the law of boundaries can lead to no other decision 
of the question under discussion as to the existence of a common law 
rule of property, making the great ponds public water, than one which 
recognizes a basis for the conclusion in the clear-cut doctrine of the 
first cases and the last cases here cited and discussed. 

(3) The third group of cases include those relating to the great 
ponds decided between 1889 and 1904. 



181 



(IV.) 

THE STATE OWNERSHIP OP THE GREAT PONDS BEING 
ESTABLISHED AS A PART OP THE COMMON LAW EXIST- 
ING IN THE PROVINCE AND STATE AT THE TIME OP THE 
ADOPTION OP THE CONSTITUTION IN 1783, THE INCOR- 
PORATION OP ARTICLE 89 IN THAT INSTRUMENT MUST 
BE ACCORDED ITS LEGAL EFFECT IN PERPETUATING 
THESE RIGHTS AND SECURING THEIR CONTINUATION 
AGAINST EVERY FORM OP ABROGATION EXCEPT ACTS 
OF THE LEGISLATURE. 

If sufficient evidence has been adduced to require the conclusion 
that the common law in the province of New Hampshire made 
the great ponds, so-called, that is, ponds having an area of more than 
ten acres, property of the public, according to the present settled deter- 
mination of the law in this state {Company v. Olcott Falls Company, 
65 N. H., Company v. Robertson, 66 N. H., the North Pond cases, State 
v. Sunapee Dam Co., 70 N. H., and Dolbeer v. Company, 72 N. H.), 
then that branch of the common law of the province would become the 
permanent law of the state under the operation, first, of the act of 
April 9, 1777, and, second, of article 89 of the constitution of 1784, 
as well as by the recognized law of nations. 

The act of 1777 provides: 

"That all the Acts and Laws in force in this State (at the time of 
the present form of Government was assumed) with every article Di- 
rection Power in the same contain 'd, so far as they are not repugnant 
to, and incompatible with the present Form of Government in this 
State and its Independence on Great Britain, or are not repealed & 
disannulled, or altered by any Act or Law made & passed by the Coun- 
cil and House of Representatives of this State since the said Assuming 
of Government, be revived reenacted directed and ordered to abide and 
remain in full force and accordingly to be exercised practiced and put 
in execution, and that all the Fines and Forfeitures thereby appro- 
priated to the King's use shall be applyed to the use of the County 
wherein the same shall be imposed and become due. ' ' 

It is not necessary to discuss the point that has already been subject 
to elaborate treatment, whether all that is enacted here would not have 



182 

resulted by force of the law of survival (as recognized in the law of 
nations) of the existing municipal law in case of a change of political 
government by conquest, revolution or other abrogation of the organic 
law prescribing a form of government for any people. 

The provisions of article 89 (90) of the constitution adopted in 1783 
present very much more important and far reaching considerations. It 
contains a provision that all the laws which have heretofore been 
adopted, used and approved in the province, colony or state and 
usually practiced in courts of law, shall remain and be in full force 
until altered and repealed by the Legislature. 

If, therefore, the right of public fishing and fowling in the great 
ponds was an element in the common law of the province and state at 
the time this constitution was adopted, that right could afterwards be 
annulled only by an act of the Legislature. No Legislature has ever 
attempted such a repeal, but ever since the time of the adoption of that 
constitution the trend of all the legislation of the state has been in the 
opposite direction. It is certain that these waters were made public or 
private by article 89 (90), accordingly as the pre-existing common law 
in the province and state is ascertained to have been the basis and guar- 
anty, at that time, either of public ownership of these waters or private 
ownership of them. It has been shown that the great judges of the 
courts nearest to the time of the adoption of the constitution have held 
the law to be in favor of the theory of public property in the inland 
ponds and lakes. The treatment of this subject in outline is now dis- 
missed and more detailed and elaborate examination of the special 
issues of law which the case raises in its various ramifications will be 
presented to the attention of the court. 



Page 183, line 11, for word ''justice," read "Justice." 
Page 183, line 12, insert before the word "navigable" the prefix 
"non-." 

Page 183, line 12, after the word "navigable," add an asterisk, 
thus *, and insert in the margin at the foot of the page the following, 
viz.: "* Hardin v. Jordan, 140 U. S., Lawyer's Edition, Book 35, p. 
432; Hardin v. Shedd, 190 U. S. 508, 177 111. 123." 



183 



(V.) 

THE PRINCIPAL COMMON LAW RULE OF PUBLIC RIGHTS 
IN THE GREAT PONDS AND THE INCIDENTAL RULES OF 
THE LAW OF BOUNDARIES, WHATEVER MAY HAVE BEEN 
THE ORIGIN OF THIS LAW AND THESE RULES, HAVE AL- 
WAYS BEEN RULES OF PROPERTY ENTERING INTO, LIM- 
ITING AND CONTROLLING GRANTS UPON SUCH WATERS 
DURING THE WHOLE PERIOD OF THE EXISTENCE OF THE 
PROVINCE AND STATE. 

Without presuming or intending at this point unnecessarily to ob- 
trude the existing rules of law in this state relating to these great 
ponds upon the attention of the court, it will, perhaps, be deemed per- 
tinent to call attention to certain principles applicable in the disposal 
of such a case as this which have been announced by the Supreme 
Court of the LTnited States. 

Where the soil is under public waters, the court say in Railroad v. 
People, 146 U. S. 459, it is for that reason appropriately within the 
police power of the state. 

Another pertinent rule appears in the case of Hardin v. Jordan, 
140 U. S. 380, in the opinion by Bradley, justice. This cause related 
to a conveyance on a navigable fresh water lake or pond. The court 
say: 

"Such being the form of the title granted by the United States to 
plaintiff's ancestor, the question is as to the effect of that title in ref- 
erence to the lake and the bed of the lake in front of the lands actually 
described in the grant. This question must be decided by some rule 
of law and no rule of law can be resorted to for the purpose, except 
the local law of the State of Illinois. ' ' 

The law is recognized by the courts and text writers generally as set- 
tled in this state. Mr. Farnham, in his Law of Waters and Water 
Rights, 1904, Vol. 1, page 173, says : 

"But the common law of New Hampshire regards the legal title of 
public waters and the soil under them as having been vested in the 
king in his fiduciary capacity for the special fiduciary purpose of se- 
curing public rights; and according to the general law of trusts this 



184 



capacity and purpose gave the trustee no private right. The people 
inherited the equitable title of public waters as he inherited the throne, 
— by force of a common law rule which he could not rightfully annul. 
At the Revolution, the state, as sovereign, succeeded the Mng in the 
office of trustee. In contemplation of law, the equitable title of the 
people was the same before and after the transfer of the legal title 
from one trustee to another. Anything less than the substance of this 
principle would fall short of the modification of English law required 
by the situation and policy of the Province. ' ' 

It has also been repeatedly recognized in the Supreme Court of the 
United States as the law of New Hampshire as well as that of Massa- 
chusetts and Maine, that the great ponds belonged to the state. In 
the case of Hardin v. Jordan, supra (1891), the court say by the opin- 
ion of Justice Bradley : 

"These ordinances [i. e., those of 1641- '47] seem to have been the 
foundation of a local common law in Massachusetts (including Maine), 
which has led to a course of decisions with regard to the title of lakes 
and ponds at variance with the general common law, and which have 
been followed in New Hampshire and some other States. It is there 
held that the land under water in such lakes and ponds belongs to the 
state, and not to the riparian owners ; and that when land is conveyed 
bounding upon a natural lake or pond, the grant extends only to the 
water's edge. The leading cases to this effect are collected in Angell 
on Water Courses, sees. 41, 41a, etc. For later decisions see Encyclo- 
pedia of Law, Volume 12, tit. 'Lakes and Ponds. ' " 

In Shively v. Bowlby, 152 U. S. 20, 21 (1893), the Supreme Court, 
by Gray, justice, again say : 

"The rule or principle of the Massachusetts ordinance has been 
adopted and practiced on in Plymouth, Maine, Nantucket and Martha 's 
Vineyard since their union with the Massachusetts Colony under the 
Massachusetts province charter of 1692, Commonwealth v. Alger, 7 
Cush. 53, 76, and other authorities collected in 9 Gray 523. " 

"In New Hampshire, a right in the shore has been recognized to 
belong to the owner of the adjoining upland, either by reason of having 
once been under the jurisdiction of Massachusetts, or by early and con- 
tinued usage. Nudd v. Hobos, 17 N. H. 524, 526; Clement v. Burns, 
43 N. H. 609, 621; Concord Company v. Robertson, 66 N. H. 1, 26, 27." 



185 



It is now nearly three hundred years since the first planting of New 
Hampshire. In that period the great pond's and inland lakes have 
been public by the common law. Great industries have been devel- 
oped in intimate relation and largely in dependence upon public 
rights in them. There are nearly six hundred of these lakes and 
ponds. The public uses in them have never been interrupted except 
by the exercise of the law-making power of the state, and this 
has been only for limited periods and for purposes assignable to the 
general police power. Industrial conditions of inestimable importance 
are now interwoven with these common law rights which make the 
great ponds public and free for all reasonable and consistent general 
uses. It is as important to New Hampshire that this status should be 
maintained from the industrial point of view as well as in 'reference 
to provisions for the healthful recreation of the people, as was the 
conservation of the lake fronts on Lake Michigan for the people of Illi- 
nois. The comity which exists between the courts of the federal gov- 
ernment and the courts of the state is always regarded, but there is a 
peculiar occasion for its exercise before these far-reaching questions in 
the presence of existing industrial conditions. 

In the case of Illinois Central R. E. v. Illinois, Justice Field takes 
occasion to discuss questions of public policy involved in the decision 
of that cause. 

He says (146 U. S. 453) : 

"The state can no more abdicate its trusts over property in which 
the whole people are interested, like navigable waters and soils under 
them, so as to leave them entirely under the use and control of private 
parties, except in the instance of parcels mentioned for the improve- 
ment of the navigation and use of the waters, or when parcels can be 
disposed of without impairment of the public interest in what remains, 
than it can abdicate its police powers in the administration of govern- 
ment and the preservation of the peace. In the administration of gov- 
ernment the use of such powers may for a limited period be delegated 
to a municipality or other body, but there always remains with the 
State the right to revoke those powers and exercise them in a more 
direct manner, and one more conformable to its wishes. So with trusts 
connected with public property, or property of a special character, 
like lands under navigable waters, they cannot be placed entirely be- 
yond the direction and control of the State. ' ' 



186 



"A private ownership of this wilderness, vested in the king," say 
the court in Concord Co. v. Robertson, 66 N. H. 12, ' £ and a regal or 
executive power of conveying those reservoirs which the interests of the 
settlers required the government should hold for common use, would 
be in conflict with the general object of their migration. The mediaeval 
rule cannot be accepted without material modification. It is not neces- 
sary to reject the theory that the legal title of public waters was in 
the king. The entire equitable title and beneficial interests being held 
and enjoyed by the public, and being capable of alienation only by an 
exercise of legislative power, it matters not who is trustee. But no 
* fiduciary theory can be adopted that allows the trustee to defeat the 
public purposes of the trust." 

With these proofs of the law of the state the defense for the people 
is submitted for the consideration of the federal court. 



APPENDICES. 



APPENDICES. 



APPENDIX A. 

Attitude of Massachusetts and New Hampshire Towards the 

Navigation Acts. 

To obj. 7. Your answer also therein being approoued, the Court 
adds, viz 11 , That for the acts passed in Par lj anient for incouraging 
trade and nauigation, wee humbly conceive, according to the vsuall say- 
ings of the learned in the lawe, that the lawes of England are bounded 
w th in the fower seas, and doe not reach Amerrica. The subjects of his 
maj te here being not represented in Pari j anient, so wee haue not looked 
at ourselues to be impeded in our trade by them, nor yett Wee abated 
in our relative allegiance to his maj tie . Howeuer, so soone as wee 
vnderstood his maj t;) ' es pleasure, that these acts should be obserued by 
his maj t;ies subjects of the Massachusets, which could not be w th out in- 
vading the libertjes and proppertjes of the subject, vntill the Generall 
Court made prouission therein by a law, which they did in October, 
1677, and shall be strictly attended from time to time, although the 
same be a discouragement to trade, and a great damage to his maj tj " es 
plantation, vntill wee shall obteyne his majestjes gracious favour for 
that liberty of trade, w ch wee are not w th out hopes but that his maj tie 
will see just occasion to grant us, for the encouraging of his good 
subjects in a wilderness & hard country, who, by Gods speciall blessing 
vpon their industry, haue promoted the worke of nauigation, by build- 
ing ships, raysing seamen, and nauigating them from country to coun- 
try; and wee doubt not but it will appeare, vpon enquiry, that this 
restreint vpon us will be an abstraction of his maj t;j ' es customes in Eng- 
land, and not an inlargement therof, for that the endeavour of the 
merchant here is to haue his bancke in England; nor doe wee beleive 
that euer it cann be demonstrated, that liberty hath binn a losse to his 
ma jtjes customes, especially of late yeares, for that for whateuer goods. 



190 



from any of his maj^^ plantations wee pay his customes before wee 
haue them; and haning pajd the dutyes, it seemes hard that wee may 
not haue liberty w th our fellow subjects in England. . Wee speake not 
thus to capittulate with his majesty, but humbly submitt the same to 
his royall clemency & grace. Records of Massachusetts Bay, Vol. 4, 
Part 2, 1661-1674, p. 194. 

APPENDIX B, NUMBER ONE. 

Statutes at Large. 39 Elizabeth to Charles 2, Cambridge, 1763. 

1 Jac. L, c. 23 (1603). 

An Act for the Better Preservation of Fishing in the Counties of 
Somerset, Devon and Cornwall and for the Belief of Bathers, Con- 
dors and Fisherman Against Malicious Suits. 

.Whereas the mode of fishing for herrings, pelchards and seafish 
within the counties of Somerset, Devon and Conwall is and of late 
time hath been very great and profitable as well to divers of the fish- 
ermen and inhabitants which dwell near the sea coasts within the said 
counties as in the cities of London and Exeter, and elsewhere within 
the realm of England and the dominions thereof, (2) and whereas 
also for the necessary use of the taking of the said herrings, pelchards 
and other seafish, divers persons within the said counties called balk- 
ers, huors, condors, directors or guidors at the fishing time for the 
said herrings, pelchards, and other sea fish within the said counties 
time out of mind have used to watch and attend upon the high hills 
and grounds near adjoining to the sea coasts within the said counties 
for the discovering and giving notice to the fishermen and inhabitants 
near adjoining when the said herrings, pelchards and sea fish came 
towards or near the sea coast there and the said guiding and directing 
of the fishermen in their boats upon the sea coast for the taking of the 
said herring, pelchard and other sea fish; 

II. And whereas also now of late divers persons having land, tene- 
ments and hereditaments near or adjoining to the sea coast within the 
said counties where the fishing places for the taking of the said her- 
rings, pelchards and other sea fish are, have brought their actions of 



191 

trespass at the Common Law as well in the high courts of record 
at Westminster as in inferior courts within the said counties, not only 
against such balkers, huors, condors, directors and guidors, but also 
against such fishermen and other persons for breaking of their close, 
as have attended their seans or nets for the drawing and carrying 
of the said fish on land or shore and have recovered against them 
costs and damages to their great loss and expense. 

2. by reason thereof such fishermen, balkers, huors, condors, directors 
and guidors and such other persons as heretofore have attended the 
said seans and fishing have forborn to enter into or upon the lands, 
tenements, or hereditaments near adjoining to such fishing places 
within the said counties for the w r atching or discovery of the said 
herrings, pelchards and other sea fish or to balk, hue, cond or direct 
or to attend the seans or nets as heretofore they have done, and will 
likewise forbear the same hereafter, if provision be not had and made 
that they may lawfully enter into and upon such lands, tenements, 
hereditaments as do lie near or adjoining to the said sea coast and 
places of fishing as aforesaid, for their watching, balking, directing 
and attending of the seans as it is aforesaid : 

III. For remedy thereof and for the maintenance of said trade of 
fishing, which doth so greatly tend to the profit of many of the (the) 
inhabitants within the said counties and others (2) be it therefore 
enacted by our sovereign lord the king, the lords spiritual and tem- 
poral and the commons in the present parliament assembled: — 

That it shall and may be lawful at all times, and times hereafter 
to and for all and every such watchman, balkers, huers, conders, 
directors and guidors, and all such fishermen and other persons as shall 
necessarily attend the said seans or nets, as aforesaid, at the times of 
fishing for herrings, pelchards and other sea fish within the said 
counties where such fish shall hereafter be taken, to enter and go into 
and upon any lands, tenements, hereditaments which do be or adjoin 
near unto such fishing places, and fit, convenient, necessary to watch 
and balk in, or to draw and carry the said fish on shore, and there to 
watch for said fish and to balk, hue, cond, direct and guide the fisher- 
men which shall be upon the said sea and sea coast for the taking of 



192 



the said fish and to draw and carry the said fish on land or shore : any 
law, nsage or cnstom to the contrary in any wise notwithstanding. 

10. And be it further enacted by the authority aforesaid, that if 
any action of trespass or other such shall at any time hereafter happen 
to be attempted and brought against any person or persons for enter- 
ing and going on the land for watching of the said fish or for balking, 
hueing, conding, directing or guiding of the said fishermen in their 
boats upon sea or sea coast for taking of said fish, or for the landing 
of the said fish, as aforesaid, by authority of this present act the de- 
fendant or defendants in any such action or suit shall and may plead 
not guilty for anything done by virtue of this act, (2) and upon the 
trial of the issue, the whole matter to be given on both parties in evi- 
dence according to the very truth of the same. 

(3) And after such issue tried by the defendant or defendants, or 
non-suit of the plaintiff or plaintiffs after appearance, the same de- 
fendant or defendants to recover his or their damages, by reason of his 
or their wrongful vexation in that behalf with costs also in that be- 
half sustained; (4) and that to be assessed by the same jury that 
shall try the said issue or else by writ to inquire the damages as the 
case shall require; (5) for which costs and damage such defendant 
shall and may by virtue of this act take and forth such execution as 
the defendant in a replevin may do. 

HIGH-WAYS. 

To the end there may be convenient high-ways for travellers. It 
is ordered by the authority of this Court, that all Country high-ways 
shall be such as may be most easy and safe for travellers, to which 
purpose the Court of that County where such high-ways is to be made 
and laid out, shall upon complaint appoint two or three men of each 
next town, whose inhabitants have most occasion thereof upon view 
to lay out such high-ways according to order givers them by that Court, 
and make return of what they did therein to the next Court, pro- 
vided always it occasion not the pulling down of any man's house, or 
laying open any garden or orchard, and in common grounds, or where 
the soil is wet, mirie or very rocky, shall lay out such high-ways the 
wider, viz. six, eight ten or more rods. 



By mistake a duplicate copy of the colonial highway law of 1639 is 
printed on pages 192, 193. The second copy should be treated as not 
printed. 



193 



APPENDIX B, NUMBER TWO, 

HIGH- W A YES. 

To the end there may be convenient High-wayes for Travellers. It 
is Ordered by the Authority of this Court. That all Country High- 
wayes shall be such as may be most easy and safe for travellers, to 
which purpose, every Town (where any such high-way is made, or 
may be made) shall appoint two or three men of the next Town, whose 
Inhabitants have most occasions thereof, chosen & appointed by their 
sayd Town, who shall from time to time lay out all Common High- 
wayes, where they may be most convenient, notwithstanding any mans 
proprietyes ( So as it occasion not the pulling down of any mans house, 
or laying open any Garde or Ochard who in Common Grounds, or 
where the soyl is wett, Myrie or very rockey, shall lay out such High- 
wayes the wider viz six, eight, ten, or more rods. Provided that if 
any man be thereby damaged in his improved ground the town shall 
make him reasonable satisfaction, by estimation of those that layd out 
the same,- & if such persons deputed cannot agree it shall be referred 
unto the County Court of the shire, who shall have power to hear and 
determine the case, and if any Person find himselfe justly grieved, 
with any act or thing, done by the persons deputed aforesaid he may 
appeal to the County Court aforesayd, but if he be found to complaine 
without cause, he shall surely pay all charges of the parties and Court, 
during that action, and also be fined to the Country, as the Court shall 
adjudg. [1639.] Colonial Laws of Massachusetts, Whitmore's Edi- 
tion, 1889, Page 157. 



194 



APPENDIX C. 

Proposals by the Commissioners of King Charles II for Altera- 
tions and Necessary Additions to be Made in the Laws of 
Massachusetts Bay, May 24, 1665. Records of Mass., Vol. 4, 
Part 2, 1661-74, pp. 211-213. 

To the General Court of his majesty's colony of the Massachusetts. 

Upon perusal of the book entitled the Book of the General Laws and 
Liberties concerning the Inhabitants of the Massachusetts, we find just 
reason to propose, in his majesty's name, that these ensuing alterations 
and necessary additions be made : — 

First. That his Majesty be declared (in the title of the book) to be 
the fountain whence his colony of the Massachusetts derive their laws 
and liberties, by a charter bearing date, etc. 

2. That a law be made that all writs, arrests, acts or forms of jus- 
tice whatsoever, be issued out and performed in his majesty's names. 

3. That his majesty's arms be set up in every Court of justice within 
this colony, and that all the masters of vessels and captains of foot 
companies do carry the true colors of England, by which they may 
be known to be his majesty's legitimate subjects. 

4. That, in the 12th capital law, 'if any conspire,' etc, 'against our 
commonwealth,' 'commonwealth' may be expunged, and 'against the 
peace of this his majesty's colony' be inserted instead of the other. 

5. That, in page 21, title Courts, it may be expressed that the Gen- 
eral Court, etc., is the chief civil power of this colony (not common- 
wealth) under his majesty. 

6. That, page 22, the second part of sect. 4, about any public mes- 
sage or negotiation be explained in proper terms, becoming one of 
his majesty's colonies. 

7. That, in page 27, title Ecclesiastical, the first proviso extend no 
further than these words: 'unless they shall acquaint the magistrates 
where they intend to join;' the rest to be left out, and the second 
section to be wholly left out. 

8. That, in the 13th section, title Constant Preachers be without 



195 



Offence, the phrase of 'council of state' may be altered, care taken 
that the laws be not a prejudice against those that are ministers 
according to the church of England. 

9. That, in page 28, the latter part of section 14, 'by open re- 
nouncing their church estate, etc., or upon some other such groundless 
conceit,' be left out; for those who return to the church of England 
ought not to pay a fine for so doing. 

10. That on the 15th page, there ought to be inserted and ordered 
to be kept the 5th of November, and the 9th and 12 of. May, as days 
of thanksgiving ; the first for the miraculous preservation of our king 
and country from the gunpowder treason; the second for his majesty's 
birth, miraculous and happy restoration to his crowns upon the same 
day; as also the 13th of January a day of fasting and prayer, that 
God would please to avert his judgments from our nations for that 
most barbarous and execrable murder of our late sovereign, Charles 
the First. 

11. And that the latter part of that section, 'shall forfeit for his 
absence from every such meeting five shillings,' may be left out, 
or provided that it be not previdical to any person who is a member 
of the church of England, and duly attends God's service accordingly. 

12. That, page 30, it be escheats are only due to his majesty, who can 
dispose of them to whom he pleases. 

13. We are satisfied with repealing the law whose title is Fishermen, 
the first section. 

11. That, page 33, 'none be admitted freemen but such as are 
members of some of the churches within the limits of this jurisdic- 
tion, ' may be explained, and comprehended such (as) are members of 
the church of England. 

15. That, page the same, the penalty for keeping Christmas, being 
directly against the law of England, may be repealed. 

16. That, page 34, heresy and error ought to be declared with more 
caution and a salvo to the church of England and the members thereof. 

17. And that the clause in said law, 'their lawful authority to 
make war,' be meant only of the kings; for this colony hath only 
power, for their special defence and safety to make a defensive war by 
their charter. 



196 



18. That, page 36, sect. 9, the law against Quakers may be re- 
strained that they may quietly pass about their lawful occasions, 
though in other cases they be punished. 

19. That, page 38, title Jesuits, 'the state of England or ourselves' 
be expunged, and 'in unity with his majesty' inserted. 

20. That, page the 40th, the law for selling the Indians' title to land 
may be explained, for it seems as if they were dispossed of their land 
by Scripture, which is both against the honor of God and the justice 
of the king; yet, in Gene. 1st, 28, 'subdue the earth' is but equivolent 
to 'to have dominion over the fish of the sea;' in Gene. 9, 1, 'replenish 
relates to generation, not husbandry; in Psa. 115, 16, 'children of 
men' comprehends Indians as well as English; & no doubt the coun- 
try is theirs till they give it or sell it, though not to be improved. 

21. That, page 59, title Committee to press Soldiers, care to be 
taken that his majesty's authority be not hereby lessened, but yet his 
warrant or command may be obeyed here as in all other his dominions. 

22. That, page 61, title Money, the law that a mint house, etc., be 
repealed ; for coining is a royal prerogative, for the usurping of which 
the act of indemnity is only a salvo. 

23. That, page 66, in the title to the law Powder, 'the government 
of may be changed into 'his majesty,' or the preface left out. 

24. We are satisfied that the second section, title Ships, being against 
the act of navigation, is repealed. 

25. That, page 73, title Strangers to be succored, that the law com- 
prehends not such as fly from his majesty's justice in England. 

26. There is no power in the charter to incorporate with other 
colonies, nor to exercise any power by that association : both belongs 
to the kings prerogative. If there be any other indecent expressions 
and repetitions of the word 'commonwealth,' 'state,' and the like, in 
other pages, we desire they may be changed. 

Richard Xic colls, 
Robert Carr. 
George Cartwright, 
Samuel Mavericke. 

May 24, 1665. 

To the General Court of his majesty's colony of the Massachusetts. 



197 



APPENDIX D. 

Christine Lake. — North pond for many years was a favorite fishing 
ground for the sportsmen of northern New Hampshire. It is a beau- 
tiful sheet of water, bordered by deep-foliaged woods, which are set 
around about by the granite peaks of Stark and Stratford. .Right in 
this glorious ampitheater of mountains the basin of the lake is found. 
Its altitude is about 2,000 feet above the sea; its length is one and a 
half miles ; its width one-half mile. The lake is fed by spring brooks 
that fall into the upper end. The over-flow emerges at the eastern 
end of the basin, and after tumbling in white cascades down several 
hundred feet in a distance of half a mile, falls into the Upper Ammon- 
noosuc river at Percy station on the grand trunk railway. 

Trout are the only fish in the lake. In early times great numbers 
were caught and carried away by visiting fishermen. Before 1883 
scores of people from neighboring towns would go to the pond, and, 
cutting holes in the ice, take large quantities for the market as well 
as for their own use. It was estimated by a competent authority that 
in the spring of 1883 at least half a ton of trout was thus caught and 
carried off. The result of this wanton destruction was to reduce the 
supply of fish, so that very few were taken during the open seasons 
of 1883 and 1884. Since the latter year the fishing has greatly im- 
proved. The trout are from four to eight ounces in weight, and are 
of the finest quality of real "brook trout." 

In the spring of 1882 Mr. George P. Rowell, of Lancaster, thinking- 
it would be a very desirable place for a summer camp, made enquiries 
as to the feasibility of purchasing the land about the pond. Henry 
Heywood, Esq., was engaged to negotiate for the land, and, as a result 
of his endeavors, lots upon which the pond is situated were purchased 
of the owner, Mrs. Charlotte Rowell, of Lunenburg, Vt., and conveyed 
to Mr. Rowell. He invited some friends to unite with him in making 
a camp at the pond, and in the fall of 1882, accompanied by Messrs. 
Samuel H. Kauffmann, of Washington, D. C, Francis H. Leggett and 
W. D. Wilson, of New York, and Ossian Ray, of Lancaster, the place 
was visited, at ' ' Camp Percy, ' ' so-called —a rude structure which had 



198 



been built by S. M. Crawford, the noted hunter and woodsman, for 
the occasion. 

These above named gentlemen, with Mr. Charles N. Kent, of New 
York, organized themselves into a voluntary corporation, under the 
laws of the state, which they called the ''Percy Summer Club/' ££ for 
the purpose of maintaining a place of resort and recreation for its 
members and its guests ; promoting and encouraging field sports ; pro- 
pagating, cultivating, and protecting brook trout and other food and 
game fishes in the streams, ponds and lakes, as well as land game of 
every sort, in the County of Coos and State of New Hampshire ; with 
the object of enjoying the sports of rod and gun, and developing the 
resources of said County of Coos in these directions. ' ' 

The first annual meeting of the club was held September 13, 1883. 
At this session of the club it was voted to rename North pond and call 
it "Christine Lake" in honor of Mrs. Christine Coates, of Philadel- 
phia, the first lady visitor entertained at the camp by the club. 

During the four years of its existence the club has worked harmoni- 
ously together. Five comfortable lodges have been erected; a cottage 
has been built for the superintendent; a path has been cut to "Giant's 
Grave," one mile; and one to North Peak, three miles away, both of 
which points are often visited by guests ; a fleet of first-class boats has 
been procured, and a hatching house established under the supervision 
of Mr. Leggett, as a result of whose efforts upwards of 90,000 young 
trout have been hatched, and put into the lake and its tributaries. 
The club is very hospitable, and entertains every season a large num- 
ber of guests. A by-law provides that no member or guest shall take 
over forty fish in any one day. The officers are : President, George P. 
Rowell, Lancaster; vice-president, Ossian Ray, Lancaster; secretary, 
Charles N. Kent, New York ; treasurer, Francis H. Leggett, New York ; 
auditor, Samuel H. Kauffmann, Washington, D. C. ; superintendent, 
Stephen M. Crawford, Percy, N. H. Fergusson's History of Coos 
County, 1888, p. 564-565, contribution by Hon. Ossian Ray. 

Early Settlers. — John Cole, James Massuere, Edward Rowell, Caleb 
Isaac and Benjamin Smith, with Elisha Blake, were early settlers. 
Their hardships were beyond belief. Elisha Blake drew a hand sled 



199 



from Barrington to Stark, a distance of over a hundred miles, a heavy 
forty-gallon kettle, and an equal weight of other articles; James Mas- 
suere frequently carried forty pounds weight on his back the same 
distance. (This paragraph was not credited to Mr. Ray.) Fergus- 
son's History of Coos County, 1888, p. 570. 

APPENDIX E, NUMBER ONE. 

The State of New Hampshire, 
Rockingham, ss. To the Sheriff of the County of Rockingham or his 
(L. S.) deputy or to any Constable of any town in said 
County. 

We command you to attach the goods or estate of Reuben Lamprey 
of Hampton in said County yeoman, to the value of thirty dollars and 
summon him (if he may be found in your precinct) to appear before 
me Jotham Lawrence Esquire a Justice of the Peace for the County of 
Rockingham aforesaid at my office in Exeter in said County on the 
13th day of April next at two of the clock in the afternoon to answer 
to David Nudd of said Hampton yeoma 11 , in a plea of trespass on the 
case, for that the said plaintiff on the twenty-third day of March pres- 
ent was possessed of four cart loads of Rock-weed of great value, to 
wit, of the value of eight dollars as of his own goods and chattels & 
being so possessed thereof thereafterwards on the same day cassually 
lost the same and the same thereafterwards on the same day came into 
the possession of the said defendant by finding. Yet the said defend- 
ant tho he well knew the same to belong to the plaintiff yet contriving 
to injure the plaintiff refused to deliver the same into the plaintiffs 
possession and converted the same to his the defendants use — to the 
damage of the said plaintiff (as he says) the sum of thirteen dollars, 
and make return of this writ with your doings therein. 

Dated the 25th day of March A. D. 1846. 

Jotham Lawrence, 
Justice of the Peace. 

A true copy. Attest. 

Jotham Lawrence,' 
Just, of the Peace. 



200 



On the back is the following : 
Rockingham, ss. March 28th 1846. 

I this day attached a hat the property of the within named Lamprey 
to the value of one cent and on the same day gave him a summons in 
hand with my name and office indorsed thereon. 

Fees: Uri Lamprey, Dep. Sheff. 

Service & Travel &c .50 

Writ 
Nudd vs Lamprey. 



Plfs. bill of cost 




Writ 


67 


Service 


50 


Entry & issue 


1.00 


Pits, travel 


50 


Attendance 


25 


1 Witness travel 


40 


Attendance 


40 


Summoning wit. 


17 



Bell & Tuck 



APPENDIX E, NUMBER TWO. 

Rockingham, ss. Before Jotham Lawrence Justice of the Peace at 
Exeter April 23d A. D. 1846, at two o'clock in the afternoon. 

David Nudd v. Reuben Lamprey. 
And the said Reuben Lamprey comes and defends &c when &c and 
says that he is not guilty as the plaintiff has alleged against him — 
and of this he puts himself on trial. 

By his attorney Oilman Marston. 
And the plaintiff doth like ; By his attorneys, 

Bell & Tuck. 

A true copy. Attest. Jotham Lawrence 

Justice of the Peace. 



201 



APPENDIX B, NUMBER THREE. 
State of New Hampshire 

Rockingham ss. Court of Common Pleas 

September Term, 1847. 
David Nudd v. Reuben Lamprey. 
The jury find that the said Reuben Lamprey is not guilty in manner 
and form as the plaintiff hath declared against him. 

Samuel D. Lane, Foreman. 

APPENDIX E, NUMBER FOUR. 
Docket Entries. 

Superior Court of Judicature December Term, 1847. 
David Nudd Apl. v. Reuben Lamprey. Apt. 
Christie. Stickney Tuck Bell Emery Marston 

Verdict for Dft. at C. C. P. Sept. T. '47. 
Dec. T. 1847. Judgment on the Verdict. 

Court of Common Pleas February Term 1848. 
David Nudd Apl. v. Reuben Lamprey. Apt. 
Tuck Emery Marston 

Sept. T. '47. Verdict for Deft. Transferred. Judgment on the 
verdict by order of the Superior Court — for cost taxed at $284.23. 
Plf . to be heard as to taxation of cost. 

& paid. 

APPENDIX F. 
Memo. 

Statutes at Large Vol. 12, p. 480. 
Anno 6° George III. (1776) 
C. A. P. XII. 

An Act for the better securing the Dependency of His Majesty's 
Dominions in America upon the Crown and Parliament of Great 
Britain. 



202 



"Whereas several of the Houses of Representatives in His Majesty's 
Colonies and Plantations in America have of late, against Law, 
claimed to themselves, or to the General Assemblies of the same, the 
sole and exclusive Right of imposing Duties and Taxes upon His Maj- 
esty's Subjects in said Colonies and Plantations; and have, in pur- 
suance of such Claim, passed certain Votes, Resolutions and Orders, 
derogatory to the Legislative Authority of Parliament and inconsist- 
ent with the Dependency of the said Colonies and Plantations upon 
the Crown of Great Britain : ' May it therefore please Your Most Ex- 
cellent Majesty, that it may be declared; and it be declared by the 
King's Most Excellent Majesty, by and with the Advice and Consent 
of the Lords Spiritual and Temporal, and Commons, in this present 
Parliament assembled, and by the Authority of the same, That the 
said Colonies and Plantations in America have been, are, and of Right 
ought to be, subordinate unto and dependent upon the Imperial Crown 
and Parliament of Great Britain ; and that the King's Majesty, by and 
with the Advice and Consent of the Lords Spiritual and Temporal, 
and Commons of Great Britain, in Parliament assembled, had, hath, 
and of Right ought to have, full Power and Authority to make Laws 
and Statutes of sufficient Force and Validity to bind the Colonies and 
People of America, Subjects of the Crown of Great Britain, in all 
cases whatsoever. 

II. And be it further declared and enacted by the Authority afore- 
said, That all Resolutions, Votes, Orders and Proceedings, in any of 
the said Colonies or Plantations, whereby the Power and Authority of 
the Parliament of Great Britain, to make Laws and Statutes as afore- 
said, is denied or drawn into question, are, and are hereby declared to 
be utterly null and void to all Intents and Purposes whatsoever. 



203 



APPENDIX G, NUMBER ONE. 

(1) List of those towns in New Hampshire that were cut off from 
the ancient Massachusetts towns by the establishment of the boundary 
line in 1740 * 



Seabrook. 

South Hampton. 

Newton. 

Plaistow. 

Atkinson. 

Salem. 

Pelham. 

Hudson. 



Nashua. 
Hollis. 
Brookline. 
Mason. 

New Ipswich. 
Rindge. 
Winchester. 
Hinsdale. 



(2) List of towns whose territory in whole or in part was originally 
included in Portsmouth, Exeter, Hampton and Dover. 



Portsmouth. 




Kensington. 


New Castle. 




East Kingston. 


Greenland. 




Kingston. . 


Rye. 




Danville. 


Exeter. 




Sandown, part of. 


Stratham. 




Seabrook. 


Newmarket. 




Dover. 


South Newmarket. 




Madbury. 


Epping. 




Somersworth. 


Brentwood. 




Lee. 


Fremont. 




Rollinsford. 


Hampton. 




Newington. 


North Hampton. 




Durham. 


Hampton Falls. 




Isles of Shoals. 



♦Massachusetts towns divided by the province iine of 1740 were: Salisbury, Amesbury, 
Haverhill, Methuen, Groton, Dunstable, Townsend, Rowley-Canada and Northfleld. 



204 



(3) Massachusetts Grants of Townships Within the Present 
Boundaries of New Hampshire Prior to 1740.* 

(Not including the Portsmouth, Exeter, Hampton, and Dover 
groups, nor the Isles of Shoals.) 

(Prom 24 N. H. State Papers, p. xv.) 



Townships. Year of Grant. 



Acworth. 


1735-6. 


Alstead. 


• 1735-6. 


Amherst. 


1728. 


Bedford. 


1733-4. 


Boscawen. 


1732. 


Bradford. 


1735-6. 


C ant erbury . 


1727. 


nonpord 

\J\JAJl\j\J1. \a* 


1659. 


Dunbarton. 


1735. 


(tO fT^t own 


1733-4. 


Henniker. 


1735-6. 


Hillsborough. 


1735-6. 


TTn"nlri n t nn 

JLJLUJJxYlUL LXJIX. 


1 735-6 

-L 1 'J 'J VJ . 


XVCCILC. 


1 733 


Lempster. 


1735-6. 


Litchfield. 


1735-6. 


Londonderry. 


1722. 


Lyndeborough. 


1735. 


Manchester. 


1735. 


New Boston. 


1736. 


New Ipswich. 


1735-6. 


Pembroke. 


1728. 


Peterborough. 


1737-8. 


Raymond. 




Rindge. 


1736-7. 


Salisbury. 


1736-7. 



♦Massachusetts Bay Colony granted tracts of land, and thus exercised jurisdiction in ter- 
ritory of Deering, Groton, Milford, Sharon, Sullivan, Hancock and Temple. Therefore they 
are included in that part of the map which is colored green. 



205 



Swanzey. 
Walpole. 

Warner (Almesbury). 
Washington. 
Weare. 
Winchester. 



1733. 
1736. 

1735-6. 

1735. 

1733. 



APPENDIX G, NUMBER TWO. 

Inland Ponds of More Than Ten Acres Area Within the Ter- 
ritory Occupied by the Present Twenty-seven Towns Which 
Have Succeeded the Four Original Towns of Portsmouth, Exe- 
ter, Hampton, and Dover. 



Somersworth. 
Coles Pond. 
Willand Pond. 

Lee. 

Wheelright Pond. 
Durham. 

One large pond. 
Fremont. 

Loon Pond. 
Hampton. 

One large pond. 
Kensington. 

One large pond. 
Kingston. 

Little Pond. 

Half Moon Pond. 

Great Pond. 

Country Pond. 



Danville. 

Long Pond. 
Sandown. 

Angle Pond. 

Cub Pond. 

Phillips Pond. 

Clarks Pond. 

French Pond. 

Showell Pond. 
Madbury. 

Barbadoes Pond. 



206 



APPENDIX G, NUMBER THREE. 
Date (Approximate) of Settlement of New Hampshire Towns. 



Towns settled before 1740. 



Allenstown. 


1730. 


TCpti si ti o'ton 


1650 


Amherst. 


1735. 


TClTlfystOTl 

X^-±XJ.^O L V/ J- i . 


1650 


Atkinson. 


1728. 


Dee. 


1640 


Auburn. 


1725. 


Tjitphfipld 

1 J -L llll\_/lv.L« 


1720 

-L 1 Ci\J . 


Barrington. 


1732. 


Dondonderry. 


1719. 


Bedford 


1736. 


IVTa flhni'v 


1 690 

-LUC V/. 


Boscawen. 


1734. 


Milford. 




Bow. 


1730. 


"IX/Tp-pyiT o rtV 

jLVJLV^-L 1 HUdl^lX. 


1720 


Brpntwood 


1720. 


A. \ CXOll Lid . 


1675 

-L\J 1 O. 


C anter bury . 


1740. 


Xl t> VV v_> CI O Lit/ • 


1623. 


Chester. 


1718. 


Npw Durham 

i. i v VV J—-' LH 11C1111. 




Concord. 


1727. 


Npwtyi a rk pf, 




Danvillp 

■ J t mi 1 1 V JL JL.JL » 


1735. 


Npw T"n<5wiph 

J-> C VV JL L/io VV Iv^-ll. 


1738 


Derrv 


1719. 


Newington. 




Deerfield. 


1725. 


Npwtnn 


16 . 


Dover. 


1623. 


North a tyi "nton 


1640. 


DnyTiain 

XJ LLL Xldlll. 


1 630 


^Tntti n o'Ti a tti 

J-\ U ii LLJJLgl.lCl-l.Ll. 


1725 

JL 1 —O. 


"Flast TCiTio'cfnTi 

JUaiSL JL\-JL±lgo LKJ1X. 


1 730 


X C111CL111. 


1792 


supping. 




T-* a tyi filrt* 

JL C111LI1 U1VC 


1730 

_L 1 0\J. 


Ensnm 

J—J k 7 k~ V / I 1 1 . 


1730. 


Portsrnoi ith 


1623. 


JCjXcIcI . 


-LUOO. 


XV IIIUllLl. 


1790 


Greenland. 


1 ■ UU. 


Rindge. 


1 / 4U. 


Hampstead. 


1728. 


Rochester. 


1728. 


Hampton. 


1638. 


Rye. 


1635. 


Hampton Palls. 


1640. 


Salem. 


1710. 


Hinsdale. 


1740. 


Sandown. 


1660. 


Hollis. 


1730. 


Seabrook. 


1640. 


Hooksett. 


1730. 


Somersworth. 


1630. 


Hopkinton. 


1735. 


Southampton. 


1640. 


Hudson. 


1710. 


Stratham. 


1700. 


Keene. 


1739. 


Wilton. 


1739. 



207 



Swanzey. 


1740. 


Winchester. 


1738. 


"Webster. 


1734. 


Windham. 


1719. 


Towns settled between 1740- 


-1760. 




Antrim. 


1744. 


Mason. 


1750. 


Barnstead. 


1767. 


Mont Vernon. 


1770. 


Brookline. 


1750. 


New Boston. 


1750. 


Candia. 


1748. 


Peterborough. 


1749. 


Charlestown. 


1740. 


Plaistow. 




Chichester. 


1 / Do. 


Richmond. 


1762. 


Dunbarton. 


* 1749. 


Roxbury. 


1760. 


Franklin. 


1760. 


Salisbury. 


1753. 


Fremont. 




Surry. 


1752. 


Goffstown. 


1750. 


Sutton. 


1752. 


Henniker. 


1755. 


Walpole. 


1749. 


Hillsborough. 


1763. 


Weare. 


1750. 


J affrey . 


1752. 


Westmoreland. 


1741. 


Lyndeborough. 


1750. 






Towns settled between 1760-1775. 




Acworth. 


1767. 


Cornish. 


1765. 


Albany. 


1767. § 


Croydon. 


1766. 


Alexandria. 


1769. ' 


D anbury. 


1769. 


Alstead. 


1764. 


Deering. 


1765. 


Alton. 


1778. 


Dorchester. 


1772. 


Andover. 


1761. 


Dublin. 


1762. 


Bath. 


1765. 


Eaton. 


1770. 


Bradford. 


1771. 


Effingham. 


1768. 


Bridgewater. 


1766. 


Enfield. 


1768. 


Bristol. 


1770. 


Farmington. 


1770. 


Campton. 


1765. 


Fitzwilliam. 


1760. 


Canaan. 


1766-7. 


Francestown. 


1760. 


Chesterfield. 


1761. 


Franconia. 


1774. 


Claremont. 


1762. 


Gilmanton. 


1761. 


Conway. 


1764. 


Gilford. 


1768. 



208 



Gilsum. 


1762. 


Grafton. 


1772. 


Grantham. 


1770. 


Greenfield. 


1761. 


Groton. 


1770. 


Hancock. 


1765. 


Hanover. 


1765. 


Harrisville. 


1762. 


Haverhill. 


1764. 


Hebron. 


1771. 


Hill. 


1768. 


Holderness. 


1765. 


Jefferson. 


1772. 


Lancaster. 


1764. 


Landaff. 


1770. 


Langdon. 


1760.' 


Lebanon. 


1762. 


Lempster. 


1770. 


Lisbon. 


1765. 


Littleton. 


1770. 


Loudon. 


1760. 


Lyman. 


1770. 


Lyme. 


1764. 


Marlborough. 


1760. 


Marlow. 


1768. 


Meredith. 


1765. 


Middletown. 


1770. 


Monroe. 


1770. 


Moultonborough. 


1764. 


Nelson. 


1767. 


Newbury. 


1772. 



New Hampton. 


1765. 


Newport. 


1760. 


Northfield. 


1760. 


Northumberland. 


1767. 


Northwood. 


1763. 


Orange. 


1773. 


Orford. 


1765. 


Piermont. 


1768. 


Pittsfield. 


1760. 


Plainfield. 


1764. 


Plymouth. 


1764. 


Rumney. 


1765. 


Sandwich. 


1765. 


Sanbornton. 


1764. 


Shelburne. 


1775. 


Springfield. 


1772. 


Stoddard. 


1769. 


Stratford. 


1772. 


Sullivan. 


1765. 


Sunapee. 


1772. 


Tarn worth. 


1771. 


Thornton. 


1770. 


Troy. 


1765. 


Unity. 


1766. 


Wakefield. 


1767. 


Warner. 


1762. 


Warren. 


1767. 


Washington. 


1768. 


Wentworth. 


1768. 


Wolfeborough. 


1768. 


Woodstock. 


1773. 



Towns settled after 1775. 

Bartlett. 1775. 
Bennington. 1780. 



Berlin. 
Bethlehem. 



1821. 
1787. 



209 



Benton. 


1776. 


Lincoln. 




Brookfield. 




Livermore. 




Carroll. 


1812. 


Madison. 


1785. 


Chatham. 


1780. 


Milan. 


1822. 


Clarksville. 


1820. 


Millsfield. 




Colebrook. 


1780. 


New London. 


1775. 


Columbia. 


1785. 


Ossipee. 


1785. 


Dalton. 


1782. 


Pittsburg'. 


1796. 


Dixville. 


1872. 


Randolph. 


1793. 


Dummer. 


1816. 


. Stark. 




Easton. 


1783. 


Stewart st own. 


1790. 


Ellsworth. 


1790. 


Success. 




Errol. 


1810. 


Tuftonborough. 


1790. 


Freedom. 




Waterville. 


1819. 


Gorham. 


1800. 


Wentworth 's Location. 




Goshen. 




Wilmot. 




Jackson. 


1778. 


Whitefield. 


1801. 


Kilkenny. 




Windsor. 





APPENDIX H, NUMBER ONE. 

State of New Hampshire. 

In the year of our Lord one thousand seven hundred & seventy seven 
[L; S.j An Act for the re establishing the General System of Laws 
heretofore in force in this State — 

Whereas Doubts have arisen whether the several Acts and Laws in 
force in this State before the Assumption of the present form of Gov- 
erning were not thereby, or by the subsequent Declaration of Inde- 
pendence vacated abrogated and disannulled; for the removal 
whereof — 

Be it enacted by the Council and house of Representatives in Gen- 
eral Court convened, and by the Authority of the same, it is hereby 
Enacted That all the Acts and Laws in force in this State (at the time 
the present form of Government was Assumed) with every article 
Direction and power in the same contain 'd, so far as they are not re- 



210 



pugnant to, and incompatible with the present Form of Government 
in this State and its Independence on Great Britain, or are not re- 
pealed & disannulled, or altered by any Act or Law made & passed 
by the Council and House of Representatives of this State since the 
said Assuming of Government,, be revived reenacted directed and or- 
dered to abide and remain in full force and accordingly to be exercised 
practised & put in Execution, and that all the Fines and Forfeitures 
thereby appropriated to the King's use shall be applyed to the use of 
the County wherein the same shall be imposed and become due. 

In the House of Representatives April 8th, 1777. The foregoing 
bill being read a third time Voted that it pass to be Enacted — 

Sent up for Concurrence John Langdon Speaker 

State of New April 9 th . 1777. In Council this bill was read a third 
Hampshire time and passed to be Enacted — 

M. Weare President — 
Recorded according to the Original Act under the State Seal — 
Examined April 1829 Attest Richard Bartlett, Sec. 

APPENDIX H, NUMBER TWO. 

Constitution of the State of New Hampshire. Adopted, 1783. 

Art. 89. (90.) All the laws which have heretofore been adopted, 
used, and approved in the province, colony, or state of New Hamp- 
shire, and usually practised on in the courts of law, shall remain and 
be in full force until altered and repealed by the legislature, such 
parts thereof only excepted as are repugnant to the rights and liberties 
contained in this Constitution; provided, that nothing herein con- 
tained, when compared with the twenty-third article in the bill of 
rights, shall be construed to affect the laws already made respecting 
the persons or estates of absentees. 



211 



APPENDIX I. 

Atkinson &c Quitclaim to Several Towns in y e Province. 

To all People to whom these Presents shall come Greeting Know Ye 
that we Theodore Atkinson Rich'd Wibird John Moffatt Mark Hunk- 
ing Wentworth Samuel Moore Jotham Odiorne jun r . Joshua Peirce 
Nath 1 . Meserve George Jafrrey jnn r . & John Wentworth jun 1 '. all of 
Portsm . in y e Province of New Hampsh 1 " in New England & Thomas 
Wallingsford of Somersworth & Tho s . Packer of Greenland both of 
said Province aforesaid divers good Canses & Considerations us here- 
unto moving have remised released & quit claimed & by these Presents 
for our Selves each & every of us & all & each & every of our Heirs 
Execut rs . & Administ 1 * respectively do remise release & forever quit 
claim unto y e Inhabitants and Proprietors of y e Several Towns Pre- 
cincts Parishes Villages Districts hereafter named lying & being within 
y e Province aforesaid Viz 11 . Portsmouth Dover Exeter Hampton Gos- 
port Kingstown Derry Chester Nottingham Barrington Rochester Can- 
terbury Bow Chichester Epsom Barnstead With all & every y e Dis- 
tricts Parishes Precincts & Villages within y e said Townships any & 
every of them & to their Successors Heirs & Assigns forever Respec- 
tively in their Seisin & Possession now being as y e s d . Townships Par- 
ishes Districts Precincts & Villages are limited bounded & described by 
y e acts orders Customs & Usages of y e said Province withal & Singular 
y e Estate Right Title Inheritance Claim & Demand of us & each & 
every of us of in & unto y e Same & every Part thereof to us in any 
manner belonging either to Houses Lands Rivers Woods Mines Min- 
erals & Appurtenances Whatsoever excepting & reserving to our 
Selves & such of us & each of us our respective Heirs & Assigns all & 
each of our several & respective Rights Titles Inheritance & Possession 
which we heretofore had in common or in severalty as Inhabitants or 
Proprietors of Houses & Lands within any of y e Towns Precincts Par- 
ishes Districts and Villages aforesaid in y e Same manner as tho y e 
above Release had never been made To have & To hold the above re- 
mised & released Premises with all y e Privileges and Appurtenances 
to the Same in any manner belonging to them y e Said Inhabitants and 



212 



Proprietors their several & respective Successors Heirs & Assigns for 
ever according to their several & respective Tenures Grants Privileges 
& possessions excepting as before Excepted In Witness whereof we 
have hereunto set our Hands & Seals y e thirty first Day of July Anno 
Domini 1746 in y e twentyeth Year of y e Reign of King George y e 
Second &c 

Signed Sealed & deliver 'd 
after y e Words (of us & each 
& every of us) were inter- 
lined in Presence of us 
Executed by all except Tho s . 
Packer Esq 1 " before 

Joshua Gilman 

Noah Emery 
Signed Sealed & deliverd 
by Tho s . Packer Esq 1 *, in Pres- 
ence of 

Richard Hart 

Noah Emery 

Province of N Hampsh 1 '. Portsm . July 31 st 1746. Then Theodore At- 
kinson Richard W'ibird John Moffat Mark Hunking Wentworth Jo- 
tham odiorne jun r . Joshua Peirce Nath 1 . Meserve George Jaffrey jun r . 
John Wentworth jun r . and Thomas Wallingford above named ac- 
knowledged y e foregoing Instrument to be their free Act & Deed before 
me 

Pierse Long Just e . Peace 

Province of New Hampsh 1 '. Portsm . Aug*. 23 d . 1746. Then person- 
ally appear 'd Samuel Moore & Thomas Packer Esq rs . & acknowledged 
y e above Instrument to be their free Act & Deed — Before Pierse 
Long Jus Peace 

The acknowledgment of this Deed by Tho s . Packer & Sam 1 . Moore 
Esq rs . was recorded 23 d . August 1746 P D Peirce Reed 1 ' 
Received July 31 st . 1746 & Recorded 18 th . Aug 1 . 1746. D Peirce Reed 1 '. 



r P t n/v\ T^lt A rpT7"T"vrc</~\"N.T 
1 HihUD . J\ 1 K1JN !b(JN 


[oEAL. 


R WlBIRD 


[Seal. 


John Mopfatt 


[Seal. 


Mark H g Wentworth 


[Seal. 


Sam l . Moore 


[Seal. 


J Odiorne ju k . 


[Seal. 


Josh Peirce 


[Seal. 


Nath l . Meserve 


[Seal. 


Geo: Jaffrey jun e . 


[Seal. 


John Wentworth jun k . 


[Seal. 


Tho s . Wallingford 


[Seal. 


Tho s . Packer 


[Seal. 



213 



State of New Hampshire. 
Office of Secretary of State. 

I hereby certify that the foregoing is a true copy of a deed recorded 
New Hampshire Province Deeds, volume 31, pages 175, 176 and 177 
in my custody as Secretary of State. 

In witness whereof, I hereunto subscribe my official signature and 
affix the seal of the state, at Concord, this 6th day of August, A. D. 
1904. 

[Seal.] 

Secretary of State. 

APPENDIX J. 

Affidavit of Henry John Brown, of London, Showing Search in 
the English Archives, and Evidence that There is no Record 
of a Repeal of the New Hampshire Laws, 1680-1681, by the 
King or Privy Council (Original Draft of the Affidavit in the 
Office of the Secretary of State at Concord, N. H. ) . 

I, Henry John Brown, a member of the firm of Stevens & Brown of 
4 Trafalgar Square, in the County of London, England, literary 
agents, do solemnly and sincerely declare as follows: 

1. I and my late partner, Benjamin Franklin Stevens, with our lit- 
erary assistants, have for many years past been engaged in the business 
of searching the archives of England contained in the Public Record 
Office and other public depositories, and are [am] still so employed. 
By reason of constant investigation of the contents of those records 
we have become very familiar with them. We have made the searches 
and prepared the material for the List of Documents in the Public 
Record Office in London, England, relating to the Province of New 
Hampshire, published in 1893 by the State of New Hampshire as 
Volume XXIII of the New Hampshire Series of State Papers. The 
same material was included in a volume in the collections of the New 
Hampshire Historical Society. 

2. At the request of Albert S. Batchellor, the Editor, of the early 
State Papers of the State of New Hampshire, we have several times 
made careful and exhaustive searches of the records of the Privy Coun- 
cil, and the records and correspondence and other papers relating to 
the business of the Committee of the Privy Council having special 
charge of Trade and Plantations, and of others relating to colonial 



214 



affairs, in order to ascertain if there was any record in those archives 
of a repeal or disallowance of the series of province laws of the Prov- 
ince of New Hampshire printed in a certain volnme of laws edited by 
Mr. Batchellor, pp. 11-40, and we have reported to him in his official 
capacity as aforesaid as follows, viz. : that we find no record of any act 
of the King or of the Privy Council repealing or disallowing the 
so-called Cutt Laws. 

3. That the List of Documents in the Public Record Office in London, 
England, relating to the Province of New Hampshire above mentioned, 
to the best of my knowledge, covers all the documents and records of 
the Lords Committee of the Privy Council for Trade and Plantations 
and the Colonial Office relating to New Hampshire in the period of the 
existence of the Cutt province government and the Cranfield province 
government, 1679-1686, and that the works published in 1896, 1898, 
and 1899 by the British government under the direction of Hon. John 
W. Fortescue. entitled : 

Calendar of State Papers, Colonial Ser., America & W. Indies, 
1677-1680; 

Calendar of State Papers, Colonial Ser., America & W. Indies, 
1681-1685 ; 

Calendar of State Papers, Colonial Ser., America & W. Indies, 
1685-1688 ; contain official abstracts of the same papers, documents, 
and records. 

4. The principal documents relating to the subject of the acts of 
the assembly of New Hampshire in the time of the administration of 
Cutt and Waldron, 1679-1682, are as follows, viz. : one printed in 
abstract in Fortescue 's Calendar of State Papers, 1681-1685, p. 138, 
sec. 287, described above, one printed in Laws of New Hampshire, 
Volume 1, 1679-1702, p. 45, and one in the same work, p. 786, as well 
as the commission of Lieutenant-Governor Edward Cranfield printed 
in the same work, p. 48, none of which contain the record or evidence 
of a repeal or disallowance of the Cutt laws by the King or by the 
Privy Council. 

5. And I make the declaration conscientiously believing the same to 
be true and by virtue of the Statutory Declaration Act, 1835. 
Subscribed and declared at 



150 Leadenhall Street in 
the City of London this 
24th day of November, 1905. 

Before me, 
[L. S.] Thomas Hewitt, 

A Commissioner for Oaths 



(Signed) Henry J. Brown. 



215 



Note. — In the oral argument it was stated that "the correspondence on this 
subject, which has transpired between the Editor of State Papers and the 
agents of his department in London will be given in the appendix to this 
review." The correspondence referred to was lost or mislaid by counsel, 
either at the time of the argument or while the papers in the case were being 
subsequently arranged for the printer and it has not been recovered. This 
has necessitated the procurement of the evidence contained in the corre- 
spondence in another form. After some unavoidable delay the affidavit of 
Mr. Henry J. Brown, containing the substance of the correspondence above 
referred to has been procured, and a copy is now added as an appendix. (See 
printed text, p. 131, ante.) 

A. S. B. 

APPENDIX K. 

The Charters of Stratford, 1773, and Percy, 1774, Containing the 
Grants of Land Surrounding Christine Lake. 
Xo. 1 Stratford 
Province of New Hampshire 

George the Third by the Grace of God of great Britain, France and 
Ireland King defend 1 " of the Faith &c — Know Ye that we of onr 
special Grace certain KnoAvledge and mere Motion for the due encour- 
agement of settling a new Plantation within onr said Province by and 
with the Advice of onr trusty and well beloved John Wentworth 
Esqnire onr Governor and Commander in chief of onr said Province 
of New Hampshire in New England and of onr Council of the said 
Province Have upon the Conditions and Reservations herein after 
made, given and granted and by these Presents for us onr Heirs and 
Successors do give and grant in equal Shares unto our loving Subjects 
Inhabitants of our said Province of New Hampshire and our other 
Governments who have petitioned us for the same setting forth their 
readiness to make immediate Settlement and to their Heirs & Assigns 
for ever whose Names- are entered on this Grant, to be divided to and 
amongst them into Seventy One equal Shares, all that Tract or Parcell 
of Land situate lying and being within our said Province of New 
Hampshire containing by admeasurement Forty eight Thousand Six 

hundred and three Acres, and is to contain something more than 

Miles square out of which an Allowance is to be made for high Ways 
and unimproveable Lands by Rocks Mountains and Rivers Two thou- 



216 



sand six Hundred Acres free according to a Plan and Snrvey thereof 
exhibited by onr Surveyor General by our said Governor's order and 
returned into the Secretary's Office a Copy whereof is hereunto an- 
nexed — butted & bounded as follows viz — begining at a Hemlock 
Tree, standing on the bank of Connecticut River which was marked 
B W by Benjamin Whiting for the north west corner of Woodbury, 
thence north eighty eight Degrees east six Miles to a Fir Tree, marked 
by said Whiting for the north east Corner of said Woodbury, thence 
on the same Course one Mile and a half, thence south two Degrees east 
eleven Miles and Two hundred and twenty Rods thence north fifty five 
Degrees West four Miles and two hundred and thirty eight Rods to a 
Spruce Tree at the north east Corner of Northumberland thence two 
hundred and eighty eight Rods on Northumberland line, thence West 
Two Miles one hundred and fifty two Rods to Connecticut River, 
thence by said River as that tends to the bounds begun — To have and 
to hold the said Tract of Land as above expressed together with all 
Priviledges and Appurtenances to them and to their Respective Heirs 
and Assigns forever by the name of Stratford upon the following Con- 
ditions viz. (First) That the Grantees at their own Cost shall cut, 
clear, bridge and make passable for Carriages of all Kinds a Road 
of Four rods wide through the said Tract hereby granted and this to 
be compleated in two years from the Date of this Grant, on Failure of 
which the Premises and every part thereof shall be forfeited and revert 
to us our Heirs and Successors to be by us or them re-entered upon 
and regranted to any of our loving Subjects. (Second) That the said 
Grantee shall Settle or cause to be settled Twelve Families by the First 
Day of June 1774, who shall be actually cultivating some Part of the 
Land and resident thereon, and to continue making further and addi- 
tional Improvement, Cultivation and Settlement of the Premises so 
that there shall be actually settled and resident thereon Seventy one 
Families by the first Day of June 1778 on Penalty of the Forfeiture 
of such Delinquent's Share and of such Shares reverting to us our 
Heirs and Successors to be by us or them entered upon and regranted 
to such of our Subjects as shall effectually settle and cultivate the 
same. (Third) That all white and other Pine Trees within the said 



217 



Township fit for Masting our Royal Navy be carefully preserved for 
that use and none to be cut or felled without our special Licence for 
so doing first had and obtained upon the Penalty of the Forfeiture of 
the Right of such Grantee his Heirs and Assigns to us our Heirs and 
Successors, as being subject to the Penalty prescribed by any present 
as well as future Act or Acts of Parliament. (Fourth.) That before 
any Division of the Land be made to and among the Grantees, a Tract 
of Land as near the Center of said Township as the land will admit of 
shall be reserved and marked out for Town Lots, one of which shall 
be allotted to each Grantee of the Contents of one Acre. (Fifth) 
Yielding and paying therefor to us our Heirs and Successors on or 
before the first Day of January 1775 the Rent of one ear of Indian 
Corn only if lawfully demanded. (Sixth) That every Proprietor Set- 
tler or Inhabitant shall yield and pay unto us our Heirs and Suc- 
cessors yearly and every year forever from and after the Expiration 
of one Year from the abovesaid First Day of January namely on the 
first Day of January which will be in the year of our Lord Christ one 
thousand seven Hundred, and seventy Six One Shilling Proclamation 
Money for every hundred Acres he so owns settles or possesses, and 
so in Proportion for a greater or lesser .Tract of the said Land, which 
Money shall be paid by the respective Persons abovesaid their Heirs or 
Assigns in our Council Chamber in Portsmouth or to such Officer or 
Officers as shall be appointed to receive the same. 

In Testimony whereof We have caused the Seal of our said Province 
to be hereunto affixed Witness John Wentworth Esquire our Governor 
Commander in chief of our said Province of New Hampshire the 
Twenty sixth Day of May in the Thirtieth year of our Reign, and in 
the Year of our Lord Christ one Thousand seven Hundred and seventy 
Three. 

Names of the Grantees of the Township of Stratford. 

Joshua Wentworth Esq 1 * John Wendell Esq 1 ' 

William Gardner Rev d Izrahiah Witmore 

Joseph Seaward Agur Tomlinson Esq 1 * 

The Hon ble Will m Sam 1 Johnson Hezekiah Tomlinson 

Esq 1 * William Agur Tomlinson 



218 



Col 1 Benjamin Hinman 
Elijah Hinman 
Cap 11 Trueman Hinman 
Aaron Hinman 
Samuel Averiel 
Cap t Samuel Bears 
Joseph Holbrook 
Joseph Holbrook jun 1 * 
Samuel Sherburne 
Daniel Fowle Esq 1 " 
Richard Hart 
William King 
George Boyd Esq 1 " 
George Craigie 
Joseph Bass 
Benjamin Parker 
Jacob Sheaf e jun 1 ' 
John Holbrook jun 1 " 
Thomas Towsey 
Stephen Curtis jun 1 ' 
Joseph Barlow 
Stephen Curtis 
Jabez Baldwin 
Stephen Shearman 
Reynold Marvin Esq 1 ' 
William Barker 
Judah Kellog 
Cap* Moses Averiel 
Morgan Noble 
Perry Averiel 
Samuel Averiel jun 1 ' 

By his Excellency's 
Command with advice 
of Council 



Cap* Agur Judson 
Agur Judson jun 1 ' 
David Judson 
Elisha Mills 
Abner Judson 
Cap* Isaiah Brown 
Cap* Daniel Judson 
Stiles Judson 
Nehemiah Curtis 
Cap* Nathan Booth 
Col 1 Joseph Willard 
William Thomson 
Samuel Curtis 
Cap* Moses Little 
Samuel Beard 
Thomas Worst er jun 1 ' 
Ebenezer Worster 
Thomas Worster Tert s 
Joseph Worster y e 2 d 
Moses Welckton 
David Mann 
Cap* Joseph Tomlinson 
Stephen Tomlinson 
Beach Tomlinson 
Daniel Judson jun 1 ' 
George Lewis 
Joseph Wells 
Heth Baldwin 
Arthur Worster 
George Marshall jun 1 ' 
Nathaniel Wells 



J [P S] Wentworth 



Theodore Atkinson Sec 5 ' 



Recorded according to the original Charter under the Province Seal 
this 28 th clay of May 1773 — 

Att* Geo : King D : Sec^ 



219 



No. 2. Stark. (Percy) 
Province of ) George the third by the grace of God of Great 
New Hampshire \ Britain France and Ireland King Defender of the 
Faith &c a 

To all to whom these presents shall come greeting 

Know ye that we of our special grace certain Knowledge and meer 
Motion for the due encouragement of settling a new Plantation within 
Our said Province by & with the advice of our Trusty & well beloved 
John Wentworth Esq 1 ' our Governor & Commander in chief of our said 
Province of New Hampshire in New England and of our Council of 
the said Province have upon the conditions & reservations herein after 
made given & granted and by these Presents for Us our Heirs and 
Successors do give & grant in equal Shares unto our loving Subjects 
Inhabitants of our said Province of New , Hampshire & our other 
Dominions who have petitioned us for the same setting forth their 
readiness to make immediate Settlement and to their Heirs & Assigns 
forever whose Names are entered on this Grant to be divided to & 
amongst them into eighty equal Shares all that Tract or Parcel of Land 
situate lying & being within our said Province of New Hampshire con- 
taining by admeasurement Twenty four thousand four hundred & 
ninety six Acres out of which an allowance is to be made for High- 
ways and unimprovable Lands by Rocks Mountains and Waters one 
thousand four hundred Acres free according to a Plan or Survey 
thereof exhibited by our Surveyor General of Lands for our said 
Province by our said Governor's order & returned into the Secretary's 
Office of our said Province a Copy whereof is hereunto annexed butted 
& bounded as follows viz r Begining at a red Birch Tree in the North 
side Line of Lancaster from thence riming North Seventy one degrees 
East Six Miles & seventy Rods to a red Birch the Southwesterly Corner 
of Land laid out for General Winslow thence North eight degrees East 
six Miles & forty Rods to a Beech the Northwesterly Corner of said 
Winslows Location thence north eighty two degrees West five hundred 
& seventy Rods to the Line of Stratford thence South two degrees 
East seven hundred & fifty Rods to the Southwesterly Corner of said 
Stratford thence north fifty five degrees West four Miles two hundred 



220 



& seventy Rods to a Spruce the northeasterly Corner of Northum- 
berland thence South seven degrees West nine Miles to the Bounds 
began at To have & to hold the said Tract of Land as above expressed 
together with all Privileges & Appurtenances to them & to their re- 
spective Heirs and Assigns forever by the name of Percy upon the 
following conditions viz* 

First That the Grantees at their own Cost shall cut clear bridge & 
make passable for Carriages of all kinds a Road of four rods wide 
through the said tract hereby granted as shall be at any time here- 
after directed by our said Governor and Council which Road shall be 
completed in one Year from the date of such direction in failure of 
which the Premises & every part thereof shall be forfeited and revert 
to us our Heirs and Successors to be by us or them reentered upon & 
regranted to any of our loving Subjects. 

Secondly That all white Pine & other pine Trees within the said 
Township fit for masting our Royal Navy be carefully preserved for 
that use & none to be cut or felled without our special Licence for so 
doing first had & obtained upon the Penalty of the forfeiture of the 
Right of the Grantee his Heirs & Assigns to us our Heirs and Suc- 
cessors as well as being subject to the Penalties of any Act or Acts of 
Parliament that are or hereafter shall be enacted 

Thirdly That before any division of the Land be made to & among 
the Grantees a Tract of Land as near the Center of the said Township 
as the Land will admit of shall be reserved & marked out for Town 
Lots One of which shall be allotted to each Grantee of the Contents of 
one Acre 

Fourthly Yielding & paying therefor to Us our Heirs and Successors 
on or before the first day of March 1780 the rent of one Ear of Indian 
Corn only if lawfully demanded — 

Fifthly That every Proprietor Settler or Inhabitant shall yield & 
pay unto Us Our Heirs and Successors yearly & every Year forever 
from & after the expiration of ten Years from the date of this Grant 
One Shilling proclamation Money for every hundred Acres he so owns 
settles or possesses & so in proportion for a greater or lesser Tract of 
the said Land which Money shall be paid by the respective Persons 



222 



abovesaid their Heirs or Assigns in our Council Chamber in Ports- 
mouth or to such Officer or Officers as shall be appointed to receive 
the same 

Sixthly That every Grantee his Heirs or Assigns shall plant & culti- 
vate five Acres of Land within the Term of five Years for every fifty 
Acres contained in his or their Share or proportion of Land in said 
Township & continue to improve & settle the same by additional Culti- 
vations on penalty of the forfeiture of his Grant or Share in the said 
Township and of its reverting to Us our Heirs and Successors to be 
by us or them regranted to such of our Subjects as shall effectually 
settle & cultivate the same 

Seventhly That any part of the premises appearing well adapted to 
the growth of Hemp & Flax or either of them shall be cultivated with 
those useful Articles of produce in the proportion of ten Acres in each 
& every hundred of these granted premises within ten Years of this 
date- 
Eighthly That this Grant shall not interfere with any of our Grants 
formerly made & now in force nor interrupt the Grantees in their 
improvements making thereon agreeable to the Conditions thereof — 
These to be in lieu of all other Rents and Services whatsoever 

In Testimony whereof "We have caused the Seal of our said Province 
to be hereunto affixed Witness John W T entworth Esq 1 ' Our Governor & 
Commander in chief aforesaid the third day of August in the four- 
teenth Year of our reign and in the Year of our Lord Christ 1774 

By his Excellencys 
command with advice 
of Council 

Geo : King Dep? Sec^ 
i J [P S] Went worth 

The Names of the Grantees of Percy 

Jacob Walden Mark Sevey 

Thomas Walden Clement March of Portsm 

Nath 1 Treadwell jun r Thomas Ransom 

George Gains Nehemiah Lowell 

Daniel Lunt Phillip Pendexter 



223 



Joshua Crocket 
Richard Fitzgerald 
John Hurd Esq 1 ' 
John Seward jun 1 ' 
Jacob Treadwell 
George Rogers Treadwell 
Nathaniel Treadwell 
Frederic Hohn 
Ammi ruhamah Cutter Esq r 
Charles Cutter 
Caleb Marshal 
Eliphalet Day 
Moses Marshall 
Stephen Well K 
Moses Bar tie tt 
Caleb Johnson 
Edmund Morse 
Samuel White Esq r 
James Paul 
James Burnside 
David Paul 
Abner Osgood 
William Moulton 
Arthur Woster 
Jacob Tilton of Haverhill 
Caleb Tap pan 
Joseph Moulton 
William Stanwood 
Josiah Bishop 
Daniel Cutter 
Thomas Martin Esq r 
Joshua Martin 
Joseph Holbrook 
John Meicher 



| of Newb^port 



Jonathan M Sewall 

William Blunt 

Stephen Sumner 

Francis Little 

Edward Ay res 

Samuel Lear 

John Noble 

Daniel Rindge Rogers 

Mark Rogers 

Hubartus Neal 

Joseph Peverly Esq r 

Thomas Peverly jun r 

Daniel Spaulding 

John Sanborn of Haverhill 

John Hodgdon of Haverhill 

William Marshal 

Silas Marshal 

Moses Davis 

Jesse Johnson 

Jesse Johnson jun 1 ' 

Jeremiah Eames 

Reuben Harriman 

Benjamin Currier 

Thomas Burnside 

David Burnside 

Nath 1 Healy Esq 1 ' of Kensington 

George Walton jun 1 ' 

Jonas Clark March 

Daniel Humphreys 

Thomas Macdonogh 

Captain John Knight 

William Lee Perkins 

Mark Sanborn of Haverhill 

Theodore Atkinson Esq 1 ' 



One Share for a Glebe for the Church of England by Law estab- 
lished. One Share for the benefit of a School in the said Town 

Recorded according to the original Charter under the* Province Seal 
this 28th day of November A. D. 1774 

Attest 1 ' Geo : King Dep^ Sec^ 



224 



Province of } Portsmouth 10 th August 1773 This certifies that 
New Hampshire j this Plan of Percy begining at a red birch Tree in 
the north side Line of Lancaster from thence riming North seventy 
one degrees East six Miles & seventy Rods to a red Birch the South- 
westerly Corner of Land laid out for General Winslow thence North 
eight degrees East six Miles & forty rods to a Beech the Northwesterly 
Corner of said Winslow 's Location Thence North eighty two degrees 
West five hundred & seventy Rods to the Line of Stratford thence 
South two degrees East Seven hundred & fifty rods to the south- 
easterly Corner of said Stratford thence North fifty five degrees West 
four Miles two hundred & seventy Rods to a Spruce the Northeasterly 
Corner of Northumberland thence South seven degrees West nine Miles 
to the Bounds began at contains twenty four thousand four hundred 
& ninety six Acres and is a true Copy of an original Plan or Survey 
of said Tract or Township as taken & returned to me by Cap* Hubartus 
Neal Dep y Surveyor 

Attest Is : Rindge S : G 1 

Copy examin 'd 

by Geo : King Dep? Sec? 



TABLE OF CASES CITED IN ARGUMENT. 



Alger, Commonwealth v., 7 Cush., 53, 66, 76 69, 80, 94, 170, 184 

Allegheny City v. Moorehead, 80 Pa. St., 118 42 

Allegheny Co. v. Gibson, 90 Pa. St., 397, 405, 407 80 

American Insurance Co. v. Canter, 1 Peters, 542 . . 12, 93 

Androscoggin Co., Thompson v., 54 N. H., 548 5 

Attorney General v. Company, 152 Mass., 447 170 

Baltimore v. State, 15 Md., 376 80 

Bank, Williams v., 7 Wend., 539 79 

Barrett, et a., Cummings v., 10 Cush., 188 81 

Benson v. Morrow, 61 Mo., 345..... 42 

Bennett, Thompson v., Smith's N. H. Reports, 337 39, 95, 174, 175, 176 

Bevans, United States v., 6 Wheat., 365 38 

Bidwell, Downs v., 182 U. S., 344 51 

Bidwell, De Lima v., 182 U. S., 208 51 

Bird, Packer v., 137 U. S., 668 41 

Blankard v. Galdy, 4 Mod. Rep., 222-225; Id. 2 Salkeld, 411. . .21, 22, 23, 24, 92 

Bloom v. Richards, 2 Ohio, 390 40 

Bloomfleld v. Johnston, Ir. 8 C. L., 68 44 

Boston, Concord & Montreal R. R. v. State, 32 N. H., 215, 230, 231 36 

Bowlby, Shively v., 152 U. S., 20, 21 184 

Brown v. Langdon, Smith's N. H. Rep., 178, 182 39 

Brown and Cooper, Smith v., 2 Salkeld, 666 22, 23, 24, 77 

Bristow v. Cormican, L. R. 3 App. Cas., 641 39, 44 

Brufty, Williams v., 6 Otto (96 U. S.), 193; S. C. Law. Ed., Book 24, 

193 83 

Bucki v. Cone, 25 Pla., 1 42 

Burns, Clement v., 43 N. H., 609, 617-619, 621 39, 44, 95, 177, 184 

Campbell, Hall v., Lofft's Rep. 710; Cowp. 204, 209. 213 7, 14, 18, 22, 26 

27, 50, 59, 64, 65, 69, 92, 94 

Canal Appraisers v. The People, 17 Wendell, 587 94 

Canter, American Insurance Co. v., 1 Peters, 542 12, 93 

Carmichael, McManus, v., 83 Iowa, 1 42 

Carson, Kielley v., 4 Moore P. C, 63, 84 40 

Charlestown, Commonwealth v., 1 Pick., 183 81 

Chicago, Etc., Ry. Co. v. McGlinn, 114 U. S. 542, 546 92 

Clarke v. Tousey, Conn. Coll. Rec, vii, 191, note; Proc. Mass. Hist. 

Soc, pp. 64-80, 165-171 25 

Clement v. Burns, 43 N. H., 609, 617, 621 39, 44, 95, 177, 184 

Clinton v. Enflebrect, 13 Wall., 434, 446 79 

Coats, Lindley v., 1 Ohio, 245 40 

Cole v. Lake Company, 54 N. H., 286, 287 36, 39, 106 

Commonwealth v. Alger, 7 Cush., 53, 66, 76 6,9, 80, 94, 170, 184 

Commonwealth v. Charlestown, 1 Pick., 183 81 



226 



Commonwealth v. Hunt, 4 Metcalf's Rep., 123 40 

Commonwealth v. Roxbury, 9 Gray, 451, 480, 481, note 509; 75 Mass., 

513; 7 Allen, p. 166 75, 76, 81, 89, 171 

Company, Attorney General v., 152 Mass., 447 170 

Concord R. R. Co., Currier v., 48 N. H., 321, 329 112 

Concord Mfg. Co. v. Robertson, et al., 66 N. H., 1-30 5, 39, 44, 87, 96, 159 

164, 168, 180, 181, 184 

Cone, Bucki v., 25 Fla., 1 42 

Conn. River Lumber Co. v. Olcott Falls Co., 65 N. H 43, 159, 181 

Copp v. Henniker, 55 N. H., 186, 187 149, 157, 168 

Cormican, Bristow v., L. R. 3 App. Cas., 641 39, 44 

Cotrill v. Myrick, 12 Me., 222 86, 161 

Cummings v. Barrett, et a., 10 Cush., 188 81 

Currier v. Concord R. R. Co., 48 N. H., 321, 329 112 

Daily v. Swope, 47 Miss., 367 80 

Dawson, Hahn v., 134 Mo., 518 , 42 

DeLima v. Bidwell, 182 U. S., 208 51 

Demopolis, Webb v., 95 Ala., 116 42 

Dolbeer v. Suncook Water Co., 72 N. H., 562 159, 164, 181 

Dorr, et a., v. United States, 195 U. S. 138 51 

Downs v. Bidwell, 182 U. S., 344 51 

Eastman v. Meredith, 36 N. H., 284 35 

Edmundson v. R. R. Co., Ill Pa. St., 316, 321 . 80 

Emerson, Gilbert v., 55 Minn., 254 42 

Enflebrect, Clinton v., 13 Wall., 434, 446 79 

Eyre, Phillips v., L. R. 6 Q. B., 1, 19 40 

Fall River, Watuppa Reservoir v., 147 Mass., 548 171 

Fowler, Wood v., 26 Kan., 682 42 

Franklin Falls' Co., State v., 49 N. H., 240, 250, 252-257 44 

Freeman, Storer v., 6 Mass., 438 95, 170 

Galdy, Blankard v., 4 Mod. Rep., 222-225; 2 Salkeld, 411 21, 22, 23, 24, 92 

Garnett, In re, 141 U. S., 1 42 

Gibson, Allegheny Co. v., 90 Pa. St., 397, 405, 407 80 

Gilbert v. Emerson, 55 Minn., 254 42 

Gilbert, Jewell v., 64 N. H., 15 83 

Gilmanton, State v., 9 N. H., 461, 463; 14 N. H., 184, 467, 478 38, 39, 44 

102, 174, 178, 179, 180 

Gilchrist, Jackson v., 15 John., 115 38 

Hall v. Campbell, Lofft's Rep., 710; Cowp. 204, 209, 213 7, 14, 18, 22, 26 

27, 50, 59, 64, 65, 69, 92, 94 

Haggin, Lux v., 69 Cal., 255 42 

Hahn v. Dawson, 134 Mo., 518. 42 

Hardin v. Jordan, 140 U. S., 371, 380 39, 183, 184 

Hardin v. Shedd, 190 U. S. 508; 177 111. 123 183 

Hatch, Shoemaker v., .13 Nev., 261 42 

Heckman v. Smett, 99 Cal., 303; 32 Cent. L. J., 284, 297 42 

Henniker, Copp v., 55 N. H., 186, 187 149, 157, 168 



227 



Hobbs, Nudd v., 17 N. H., 524, 526, 527 38, 39, 95, 102, 176, 179, 180, 184 

Horn v. Lockhart, 84 U. S., 581; Law Ed., Book 21, 660 83 

Houghton v. Page, 2 N. H., 44 '. 37 

Hunt, Commonwealth v., 4 Metcalf's Rep., 123 40 

In re Garnett, 141 U. S., 1 42 

Iron Co., Weise v., 13 Ore., 496 42 

Jackson, State v., 69 N. H., 511 97 

Jackson v. Gilchrist, 15 John., 115 38 

Jewell v. Gilbert, 64 N. H., 15 83 

Johnson v. Mcintosh, 8 Wheat, 543, 582 7, 51, 54, 56 

Johnston, Bloomfield v., Ir. 8 C. L., 68 44 

Jordan, Hardin v., 140 U. S., 371, 380 39, 183, 184 

Kielley v. Carson, 4 Moore P. C, 63, 84 40 

Kirk, Monongahela Bridge Co. v., 46 Penn. St., 112, 120 40, 41 

Ladd, Purrington v., 58 N. H., 596 112 

Lamprey, Nudd v., 66 N. .H., 27 200 

Langdon, Brown v., Smith's N. H. Rep., 178, 182 39 

Lake Company, Cole v., 54 N. H., 286, 287 36, 39, 106 

Lechmere, Winthrop v., Conn. Coll. Rec, vii, 191, note; Proc. Mass. 

Hist. Soc, pp. 64-80, 165-171 25 

Lindley v. Coats, 1 Ohio, 245 40 

Lisbon v. Lyman, 49 N. H., 581, 582 37, 39 

Lockhart, Horn v., 84 U. S., 581; Law. Ed., Book 21, 660 83 

Lucas, Strother v., 12 Peters, 410, 438 94 

Lux v. Haggin, 69 Cal., 255 42 

Lyman, Lisbon v., 49 N. H., 581, 582 37, 39 

Marshall v. Ulleswater S. N. Co., 3 B. & S., 732; L. R. 7 Q. B. 166 44 

Martin v. Waddell, 16 Peters, 367 7, 51, 55, 57 

Mayor and Aldermen of Norwich, Queen v., 2 Ld. Raymond. 25 

McGlinn, Chicago, Etc., Ry. Co. v., 114 U. S., 542, 546 92 

Mcintosh, Johnson v., 8 Wheat, 543, 582 7, 51, 54, 56 

McManus v. Carmichael, 83 Iowa, 1 42 

Meredith, Eastman v., 36 N. H., 284 35 

Mitchell v. United States, 9 Peters, 711 94 

Monongahela Bridge Co. v. Kirk, 46 Penn. St. 112, 120 41 

Moore v. Taylor, 44 N. H., 370, 373 112 

Moorehead, Allegheny City v., 80 Pa. St., 118 42 

Morrow, Benson v., 61 Mo., 345 42 

Myrick, Cotrill v., 12 Me., 222 86, 161 

Nudd v. Hobbs, 17 N. H., 524, 526, 527 38, 39, 95, 102, 176, 179, 180, 184 

Nudd v. Lamprey, 66 N. H., 27 200 

Olcott Falls Co., Conn. River Lumber Co. v., 65 N. H. ; .43, 159, 181 

Orr v. Quimby, 54 N. H., 621 24 

Packer v. Bird, 137 U. S., 668 , 41 

Page, Houghton v., 2 N. H., 44 37 

P. R. R. Co., Stevens v., 34 N. J. Law, 532 44 

People, Canal Appraisers v., 17 Wendell, 587 94 



228 



People, Yates v., 6 John. Rep., 423 38 

People, Railroad v., 146 U. S., 459 183 

Percheman, United States v., 7 Peters, 51, 86 94 

Peters, Wheaton v., 8 Peters, 659 41 

Phillips v. Eyre, L. R. 6 Q. B., 1, 19 . 40 

Phillips v. Savage, Conn. Coll. Rec. vii, 191, note; Proc. Mass. Hist. 

Soc, pp. 64-80, 165-171 25 

Pierce, Wells v., 27 N. H., 503 43 

Powell v. Sims, 5 W. Va., 4 41 

Purrington v. Ladd, 58 N. H., 596 112 

Queen v. Mayor and Aldermen of Norwich, 2 Ld. Raymond 25 

Quimby, Orr v., 54 N. H., 621 : 24 

Railroad Co., Edmundson v., Ill Pa. St., 316, 321 80 

Railroad v. People, 146 U. S., 459 183 

Railroad, Renwick v., 49 Iowa, 664, 669 42 

Ramsey, St. Louis Ry. Co. v., 53 Ark., 314 42 

Renwick v. Railroad, 49 Iowa, 664, 669 42 

Rex v. Vaughan, 4 Burr., 2429 25 

Richards, Bloom v., 2 Ohio, 390 40 

Roberts, State v., 59 N. H 179 

Robertson, et a*l., Concord Mfg. Co. v., 66 N. H. 1-30 5, 39, 44, 87, 96, 159 

164, 168, 180, 181, 184 

Rollins, State w., 8 N. H., 560, 561 38, 39, 55, 102, 146, 174, 176, 177 

Roxbury, Commonwealth v., 9 Gray, 451, 480, 481, note 509; 75 Mass. 

513; 7 Allen, 166 75, 76, 81, 89, 171 

Sandford, Scott v., 19 How., 393 24 

Savage, Phillips v., Conn. Coll. Rec. vii, 191, note; Proc. Mass. Hist. 

Soc, pp. 64-80, 165-171 25 

Scott v. Sandford, 19 How., 393 24 

Shedd, Hardin v., 190 U. S. 508; 177 111. 123 ' 183 

Shively v. Bowlby, 152 U. S., 20, 21. ... " . 184 

Shoemaker v. Hatch, 13 Nev., 261 42 

Sims, Powell v., 5 W. Va., 4 41 

Smett, Heckman v., 99 Cal., 303; 32 Cent. L. J., 284, 297 42 

Smith v. Browne and Cooper, 2 Salkeld, 666 22, 23, 24, 77 

Smith v. Stewart, 21 L. Annual, 67 83 

St. Louis Ry. Co. v. Ramsey, 53 Ark., 314 42 

State, Boston, Concord & Montreal R. R. v., 32 N. H, 215, 230, 231. . . 36 

State, Baltimore v., 15 Md., 376 80 

State v. Franklin Falls Co., 49 N. H, 240, 250, 252-257. 44 

State v. Gilmanton, 9 N. H., 461, 463; 14 N. H., 184, 478 38, 39, 44, 102 

174, 178, 179, 180 

State v. Jackson, 69 N. H, 511 97 

State v. Roberts, 59 N. H 179 

State v. Rollins, 8 N. H., 560, 561 38, 39, 55, 102, 146, 174, 176, 177 

State v. Sunapee Dam Co., 70 N. H, 460, 461 39, 174, 180, 181 

State v. Tomilson, 77 N. Car., 58 42 

State v. Wilson, 43 N. H, 415, 419 112 

Stevens v. P. R. R. Co., 34 N. J. Law, 532 44 



229 



Stewart, Smith v., 21 L. Annual, 67 83 

Stoddard, West Roxbury v., 7 Allen, 158 171 

Storer v. Freeman, 6 Mass., 438 95, 170 

Strother v. Lucas, 12 Peters, 410, 438 94 

Sunapee Dam Co., State v., 70 N. H., 460, 461 39, 174, ISO, 181 

Suncook Water Co., Dolbeer v., 72 N. H., 562 159, 164, 181 

Swope, Daily v., 47 Miss., 367 80 

Taylor, Moore v., 44 N. H., 370, 373 112 

Thompson v. Androscoggin Co., 54 N. H., 548 5 

Thompson v. Bennett, Smith's N. H. Reports, 337 39, 95, 174, 175, 176 

Tomilson, State v., 77 N. Car., 58 42 

Tousey, Clarke v., Conn. Coll. Rec. vii, 191, note; Proc. Mass. Hist. 

Soc, pp. 64-80, 165-171. 25 

Ulleswater S. N. Co., Marshall v., 3 B. & S., 732; L. R. 7 Q. B., 168. . 44 

United States, Dorr, et a., v., 195 U. S. 138 51 

United States, Mitchell v., 9 Peters, 711 .' . 94 

United States v. Percheman, 7 Peters, 51, 86 94 

United States v. Bevans, 6 Wheat, 365 38 

Vaughan, Rex v., 4 Burr., 2429 25 

Waddell. Martin v., 16 Peters, 367 7, 51, 55. 57 

Watuppa Reservoir v. Fall River, 147 Mass., 548 171 

Webb v. Demopolis, 95 Ala., 116 42 

Weise v. Iron Co., 13 Ore., 496 . 42 

Wheaton v. Peters, 8 Peters, 659 41 

Wells v. Pierce, 27 N. H., 503 43 

West Roxbury v. Stoddard, 7 Allen, 158 171 

Williams v. Bank, 7 Wend., 539 79 

Williams v. Bruffy, 6 Otto (96 U. S.), 193; S. C. Law. Ed., Book 24, 193 83 

Wilson, State v., 43 N. H., 415, 419 112 

Winthrop v. Lechmere, Conn. Coll. Rec. vii, 191, note; Proc. Mass. 

Hist. Soc, pp. 66-80, 165-171 25 

Wood v. Fowler, 26 Kan., 682 42 



Yates v. People, 6 John. Rep., 423 



DECLARATIONS OF RIGHT, LAWS. LIBERTIES, ACTS, STATUTES 
AND ORDINANCES. 

Acts and Laws, Province of New Hampshire, 1716-1726, p. 4 114, 144 

Acts and Laws, Province of New Hampshire, 1761 114 

Acts and Laws, Province of New Hampshire, 1771 114 

Acts and Resolves of Massachusetts Bay, Ames-Goodell Ed., 1869, 17 143 

Act of 6 Geo. Ill, Stats, at Large, Vol. 12, p. 460, Appendix F 59 

Allen's Commission, 1 Laws of N. H., 592 155, 156 

Andros Commission * 117, 151, 156 

Bellomont's Commission, 1 Laws of N. H., p. 613 155, 156 

Colony Ordinances, 1641- 47 24, 38, 39, 62, 78, 81, 89, 90, 99 

Laws, Time of Cutt and Waldron, 1680-1682 17, 65, 103, 104, 107, 113, 117 

120, 121, 123, 124, 125, 126, 127, 131, 138, 143 
144, 145, 146, 147, 151, 156, 176, 177, 178 



230 



Laws, Time of Cranfield' and Barefoote, 1862-1868 17, 105, 113, 117, 121 

123, 138, 147, 148, 150, 151, 155, 176 
1 Laws of New Hampshire, 1679-1702 18, 21, 60, 62, 63, 64, 65, 75, 77, 



81, 82, 86, 88, 91, 100, 101, 102, 103, 105, 107, 108, 109 
110, 111, 114, 115, 116, 117, 118, 120, 123, 125 
126, 131, 132, 136, 137, 141, 142, 143, 144, 148 
149, 150, 151, 152, 153, 155 

Laws of New Hampshire, Ed. of 1771, pp. 2, 4 117, 155, 156 

Laws of New Hampshire, 1641-1647 24, 38, 39, 62, 78, 81, 89, 90, 99 

Laws, Province of N. H., 1716-1726, p. 4 114-144 

Laws, Province of N. H., 1761 114 

Laws, Province of N. H., 1771 114 

Laws, Time of Allen 155, 156 

Laws, Time of Andros 117, 151, 156 

Ordinance of Massachusetts and New Hampshire for 'free fishing and 

fowling in the great ponds 85,89 



GENERAL AUTHORITIES. 

LEGAL TEXT WRITERS, PUBLIC DOCUMENTS AND RECORDS, HIS- 
TORIES AND MONOGRAPHS. 

Act of Union, October 7, 1641, 25 N. H. State Papers, 705, 706 62 

Adams, Emancipation of Massachusetts, 197 26 

Addresses before Bar Association of Virginia and the American Bar 

Association, by James C. Carter 3 

American Law, by Walker, 7th Ed., p. 54 43 

American Colonies, by Marshall 7 

Angell's Water Courses, sees. 41, 41a, etc 184 

Beginnings of New England, by John Fiske 64 

Bigelow Ed., Story on Constitution, 5, 89, sect. 157, notes 52 

Bipsham, George T., Law in America, 1776-1876 4, 88 

Blackstone's Commentaries 6, 8, 9, 10, 17, 27, 28, 69, 70 

1 Bouton N. H. Province Papers, 37, 376, 379, 382, 398, 410, 412, 443. . . 100 

101, 103, 105, 107, 109, 111 



Calendar of State Papers, Coloniai Series, America and West Indies, 
1681-1685, Preserved in His Majesty's Public Record Office, edited 
by the Hon. J. W. Fortescue and published by authority of the 
lords commissioners of her majesty's treasury, under the direc- 



tion of the Master of the Rolls 117, 120 

Calendar of N. H. Papers, by B. F. Stevens, 1893, Vol. 23, N. H. 

State Papers Series 131 

Calvin's Case, Coke's Report 3, 7, 8, 13, 19, 20, 26, 28 

Campbell's Lives of the Chief Justices, Estes & Lauriat Ed., 1873, Vol. 

3, p. 299, 300, et seq 24, 45 

Carter, James C, Addresses before Bar Association of Virginia and 

The American Bar Association 3 

Central Law Journal, Vol. 53, p. 349 (1901) 42 

Charters and Constitutions, by Poore, Vol. 1, p. 255; Vol. 2, pp. 1598, 

1891 11, 65 



231 



Charters and Laws of Plymouth Colony, Brigham's Ed., 1836, pp. 

34, 282 87 

Chalmer's Political Annals of the Present United Colonies 33, 115, 120 

121, 122, 123, 124, 126, 128, 136 

Chitty, Law of Prerogative of the Crown (1820), p. 31 51 

Colonial Laws of Massachusetts, Whitmore's Ed 34, 62, 81, 88, 89 

90, 104, 162, 193 

Constitutional Limitations, by Cooley, 22, 31, note 1, 33 36, 79, 88 

Cooley's Blackstone (4th Ed., Andrews), star paging 108 20, 51 

Cooley's Constitutional Limitations, 22, 31, note 1, 33. 36, 79, 88 

Constitutional History of the United States, by Thorpe 53 

Conn. Col. Rec. vii, 191, note 26 

Cooke's History of Virginia, Commonwealth Series, 1884, 15 13 

Deane, 1 Memorial History of Boston, Chap. X, Vol. 1, 342, 343, 354, 

355, 356, 367, 382. 16, 33, 69, 73, 77,. 78, 79 

Defendant's Testimony (Percy Summer Club), Vol. Ill, passim 85 

Dillon, Yale Lectures 3, 35, 46, 105 

Doyle, M. A., 2 English Colonies, 88, 90; 3 English Colonies, 211, 212, 

294, 295, 329, 332, 333 60, 75, 141 

Dwarris, Statutes and Constitutions, Potter's Ed., pp. 41, 42, 154 67, 112 

Early Government of N. H., by Ezra S. Stearns 138 

Ellis, George E., The Puritan Age in Massachusetts, 1888, 514 79 

Encyc. of Law, Vol. 12, title, Lakes and Ponds 184 

Endicott Rock Commission, report of 1893 63 

Endlich on Statutes, par. 210. 112 

English Calendars, passim 79 

3 English Colonies in America, by Doyle, 211, 212, 294, 495, 329, 332 

333 60, 141 

2 English Colonies in America, by Doyle, 88, 90 75 

Expansion of the Common Law, by Sir Frederick Pollock 3 

Farmer's Belknap, Hist, of N. H., preface, p. xii; 53, 54, 55, 85, 90, 

96, 105, 117, 122, 148, 251, 299, and chap 8, passim... 62, 122, 123, 124, 135 

149, 153, 168, 172 

Farnam's Law of Water and Water Rights, Vol. 1, p. 173 183 

Fergusson's History of Coos County, 1888, pp. 564, 565, 570, App. D. . 85, 199 

Finlasson's Ed., Reeve's Hist. Common Law, Vol. 3, p. 2 10 

Fisher, Jacob, Digest, Vol. 2, p. 1842 70 

Fiske, John, Beginnings of New England • 64 

Fortescue's English Calendar, 1681-1685, sect. 106, p. 51; sect. 287. . .63, 86, 99 

104, 117, 118, 120, 127, 162 

Franklin, Works by Sparks, Vol. IV, p. 271 51, 88 

Freeman's Growth of the English Constitution 67 

Gray's Note, 75 Mass., 517 78, 80 

Growth of the English Constitution, by Freeman 67 

Halleck's International Law, chapter 34, 14 12, 93, 94 

History of Concord, N. H., chapter on the Bow Controversy 166 

History of Connecticut, Commonwealth Series, by Alex Johnston, 63 64 



232 



History of Christine Lake, by Ossian Ray 85 

History of New England, Savage's Ed., Vol. 2, p. 351, by Gov. Win- 

throp , .-. ■ 31 

History Memoranda of Ancient Dover, Scales' Ed., p. 8, by A. H. 

Quint 8, 61, 153 

History of Coos County, by Pergusson, 1888, pp. 564, 565, 570, App. D. 85, 199 
History of New Hampshire, by P. B. Sanborn, pp. 11, 13, 15, 76, 109. . Ill 

129, 149 

History of Virginia, Commonwealth Series, by Cooke, 1884, 15 13 

History of the Province Laws, by Hoyt 124 

History of Common Law, 66 67 

History of the White Mountains, by B. G. Willey, p. 278 85 

History Mass. Bay Colony, Hutchinson's Coll. of Papers 31, 33, 73 

Hoyt's History of the Province Laws 124 

Howe, Daniel Waite, The Puritan Republic of Mass., Ch. Ill, p. 48. . . 36 
Hutchinson, Massachusetts Bay, i, 322 31, 33 

International Law, by Halleck, chapter 34, 14 12, 93, 94 

Jacob's Law Diet., 1728, title, Common Law 10 

I Jac. I., c. 23 (1603) 190 

4 Jefferson's Works, 178 51, 54 

Johnston's Hist, of Conn., Commonwealth Series, 63 64 

Journal of Congress, Ford's Ed., 1904, 69 52 

II Jur„ N. S., 353 35 

1 Kent's Comm., 167, 178, note (a), 471 39, 83, 94 

Law of America, 1776-1876, by George T. Bipsham, in North American 

Review, Vol. 122, p. 156 4, 88 

Law of Nations, sect. 206 62 

Law of Prerogative, Chitty, 1820, p. 31 51 

Law of Water and Water Rights, by Farnham, Vol. 1, p. 173. . . 183 

Lewis' Edition Blackstone, 1898, star paging 107, note (20) 64 

Lewis' Revision of Southerland on the Law of Statutes and Consti- 
tutions 113 

Lives of the Chief Justices, Estes and Lauriat Ed., 1873, by Lord 

Campbell, Vol. 3, p. 299; p. 300, et seq 24, 45 

12 L. T., N. S. 188 35 

Lowell Institute Lectures, by Judge Joel Parker, 1869 5, 29, 39, 76, 78, 80 

88, 102 

Marshall's American Colonies 7 

Manual of the N. H. General Court, 1879, 1-17 18, 65 

Massachusetts Bay Records, Vol. 4, part 2, 1661-1674, pp. 194, 211-213 78 

79, 190, 194 

Massachusetts Colonial Records Relating to the First Union of New 

Hampshire and Mass. Bay, Vol. 1, pp. 324, 332, 342, 343 63 

Massachusetts Colonial Laws, Whitmore's Ed 34, 62, 81, 88, 89, 90 

104, 162, 193 

Massachusetts, Emancipation of, by Adams, 197 26 

Massachusetts Bay Colony, Papers Relating to History of, Hutchin- 
son's Collection 31 



233 



Massachusetts Hist. Soc, toy Prof. Emory Washburn, 1875, Vol. 13, 

p. 451 95, 156 

2 Mass. Hist. Soc. Coll. viii, 97, Text of Writ 73 

4 Mass. Hist. Soc. Coll. ii, 246-278 78 

5 Mass. Bay Records, 200 30 

75 Massachusetts, Gray's note, p. 517 78, 80 

Monograph on the Charter, by Washburn . .. 80 

2 Moore P. C. C., N. S. 115 . . 35 

N. H. Reports, by Smith, 337, 503, 529, note 2 67, 95, 173 

N. H. Hist. Soc. Proc, Vol. 1, p. 285, et seq.; separate pamphlet, 

1885, p. 55, et seq 124 

N. H. Papers, Calendar of, by B. F. Stevens, Vol. 23 131 

N. H. Bar Ass'n Proceedings, Vol. 1, p. 676 175 

N. H. Province Papers, 1 Bouton 100, 101, 103, 105, 107, 109, 111 

2 N. H. Province Papers, 348 141 

3 N. H. Province Papers, p. 285 , 143 

17 N. H. State Papers, 497, 531, 541-543, 544, 547, 550, 551-555 99, 102, 104 

109, 110, 125, 162 

19 N. H. State Papers, passim; Id., 651-658 63,123 

24 N. H. State Papers, preface, pp. xv, vi, 1-368 63, 166, 203, 206 

25 N. H. State Papers, 705, 706 62 

27 N. H. State Papers, passim 172 

28 N. H. State Papers, passim 172 

29 N. H. State Papers, 17, 69, 77, 216 12, 111, 162 

Notes, Historical and Bibliographical on the Laws of N. H., by Albert 

H. Hoyt, 1876, pp. 6, 12 36, 114 

Oliver, Peter, Puritan Commonwealth, 78, 79, 80 46, 69 

Papers of Submission, June 2, 1641, and the Act of Union, October 7, 

1641, printed in 25 N. H. State Papers, 705, 706 62 

Palfrey's History of England, p. 218 141 

2 Pere Williams, 75 3, 8, 28 

13 Pick., 258, in 32 169 

Political Annals of the United States, by George Chalmers, 1780. . .33, 115, 120 

121, 122, 123, 124, 126, 128, 136 

Pollock, Sir Frederick, Expansion of the Common Law 3 

Poore's Charters and Constitutions, Vol. 1, pp. 255, 940, 950; Vol. 2, 

pp. 1598, 1891 11, 12, 65 

Potter's Dwarris on Statutes and Constitutions, Ed., 1871, p. 154 112 

Privy Council on the Law of Inheritances, ante p. 25 77 

Proc. Mass. Hist. Soc, pp. 64-80, 165-171 26 

Province Papers of N. H., 1 Bouton 100, 101, 103, 105, 107, 109, 111 

2 Province Papers of N. H., 348 141 

3 Province Papers of N. H., p. 285 143 

Pulton's Statutes of the Realm, imprint of 1617, p. 237 90, 107 

Puritan Age in Massachusetts, by George E. Ellis, 1888, 514 79 

Puritan Republic of Mass. Bay in New England, by Daniel Waite 

Howe 36 

Puritan Commonwealth, by Peter Oliver, pp. 78, 79, 80 46, 69 



SHAY 28 190/ 



234 

Quint, A. H., Comments Hist. Memo. Anc. Dover, Scales' Ed., 17, 18 . . 61 

Randolph, Edward, by Toppan 32, 133, 139, 140, 141, 148, 149 

Ray, Ossian, History of the Lake (Christine) 85 

Reeve's History of Common Law, Finlasson's Ed., Vol. 3, p. 1 10 

Report of the Endicott Rock Commission, 1893 63 

Sanborn, F. B., Hist, of N. H., pp. 11, 13, 15, 76, 109 Ill, 129, 149 

Salkeld's Reports, 411, 666, etc 6, 28 

Savage's Ed., Hist, of New England, by Gov. Winthrop, Vol. 2, p. 351 31 

Scales' Ed., Hist. Memo. Anc. Dover, 8, 17, 18. . . 61, 153 

Sharswood's Blackstone, Ed. of 1880, Vol. 1, p. 73, note 14, and p. 

107, note 11 56, 58, 67 

Show, Pari. C. 31 28 

Smith's N. H. Reports, 337, 503, 529, note 2 67, 95, 173 

Smith, William, Sources of N. H. Law, 1 Proc. of the N. H. Bar Asso- 
ciation, p. 682 5 

Southerland on the Law of Statutes and Constitutions 113 

Spark's Works of Franklin, Vol. IV, 271 51, 88 

Statutes at Large, Vol. 12, p. 480 201 

Statutes and Constitutions, Potter's Ed., by Dwarris, pp. 41, 42, 154 . . 67, 112 
Stearns, Ezra S., The Early Government of N. H., Manual of the Gen- 
eral Court, 1897, pp. 1, 2 138 

Stevens, B. F., Calendar of N. H. Papers, 1893, Vol. 23, N. H. State 

Papers Series 131 

Story on Constitution, Bigelow Ed., 5, 89, sect. 157, notes 52 

Sullivan's Land Title, 55 96 

Toppan's Edward Randolph 32, 133, 139, 140, 141, 148, 149 

Thorpe's Constitutional History of the United States 53 

The Ideal and the Actual in the Law, by James C. Carter, Address 

before American Bar Association. 3 

Written and Unwritten Law, The Province of, by James C. Carter, 

Address before Virginia State Bar Association, 1889 3 

Vattel, b. 3, c. 13, sec. 200 94 

Walker's American Law, 7th Ed., p. 54 43 

Washburn's Monograph on the Charter 80 

Washburn, Emory, Article in Mass. Hist. Soc, 1875 95 

Water Courses, by Angell, sees. 41, 41a, etc 184 

13 W. R., 549 35 

2 Wilkins' Works, Andrews' Ed., p. 519 76 

2 Wils., 348, 350 66 

Willey, B. G., Hist, of the White Mountains, p. 278 85 

Winthrop, Gov., History of New England, Savage's Ed., Vol. 2, p. 351 31 
Written and Unwritten Law, The Province of, by James C. Car- 
ter, Address before Virginia State Bar Association, 1889 3 

Yale Lectures, by John F. Dillon 3, 35, 46, 105 



INDEX TO APPENDIX. 



Laws of England. Theory Regarding their Extension to the Colonies 
Advanced by Resolve of the General Court of Massachusetts Bay 
and New Hampshire, 1661-1674 A 189 

Act of James I, 1603, Declaring the Right of Fishermen and Their 
Assistants to Cross Intervening Private Lands to Reach the Sea- 
shore Without being Liable for Damages B 1, 190 

Act of the General Court of Massachusetts Bay and New Hampshire, 
1639, Limiting Damages for Lands Taken for Public Highways to 
Such as are Cultivated, and Giving the Right to Cross Unculti- 
vated Lands Without Payment of Damages Therefor to the Owner B 2, 193 

Proposals of King's Commission, 1665, for Amendment of Laws of 
Massachusetts Bay and New Hampshire Contain no Mention of, 
nor Objections to, the Ordinances of 1641, 1647 C 194 

Christine Lake, Outline of History of, by Ossian Ray D 197 

Stark (Percy) Extracts of Accounts of Early Settlers, Shortage of 
Food Supply and Other Hardships, Fergusson's History, Coos 
County D 198 

Nudd v. Lamprey, 1847, Unreported, Cited in Concord Co. v. Robert- 
son, 66 N. H. 27: 

Writ, etc E 1, 199 

Record in Justice Court E 2, 200 

Record in Court Common Pleas E 3, 201 

Docket Entries, Superior Court of Judicature E 4, 201 

Act of Parliament, 1766, Declaring and Defining the Power of Par- 
liament Over the Colonies F 201 

Massachusetts Towns Divided and New Towns Constituted in New 

Hampshire by Establishment of Boundary Line in 1740, List of . . . . G 1, 203 
Inland Ponds of More Than Ten Acres' Area Within the Territory 
Occupied by the Present Twenty-seven Towns Which Have Suc- 
ceeded the Four Original Towns of Portsmouth, Exeter, Hampton 

and Dover, List of G 2, 205 

Dates (Approximate) of Settlement of New Hampshire Towns, 

Table of G 3, 206 

Act of New Hampshire Legislature, 1777, Declaring that the Laws of 
the Province, not Incompatible with the New Form of Govern- 
ment and the New Conditions Resulting from the Revolution, 

Continue Unchanged H I, 209 

Constitution of New Hampshire, Art. 89 (90), Establishing the Com- 
mon Law of the Province Period as not Alterable by Judicial 
Legislation and as Irrepealable Except by Express Act of the 
Legislature H 2, 210 



Quitclaim Deed of the Masonian Proprietors to the People at Large 

in the Settled Towns, 1746. I 211 

Laws in the Time of Cutt, Examination of the English Archives for 
Evidence Relating to. Affidavit of Henry John Brown of the 

Late Firm of B. F. Stevens & Brown J 213 

Charter of the Township of Stratford, 1773 K 1, 215 

Charter of the Township of Percy (now Stark), 1774 K 2, 219 

Map of (1) Massachusetts Tov/ns Severed by Boundary Line of 1740; 
(2) Present Towns formerly Parts of the Original Four; (3) 
Townships Granted North of Present Line by Massachusetts .... 225 



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